Lord Neuberger is right to speak out about Legal Aid

Lord Neuberger in interview with the BBC

After reading the interview with Lord Neuberger, head of the Supreme Court, by the BBC News, I began to realise that the doctrine of separation of powers, which I studied many years ago in my law degree is being mildly eroded. Whilst I applaud him for complaining about the withdrawal of Legal Aid, and criticising the government, I wonder whether it is philosophically more healthy to keep the powers apart.

If one reads the interview, which was repeated on the BBC Today programme this morning, with contributions from Lord Bach, Former Legal Aid Minister and currently a Shadow Justice Minister and Sir Edward Garnier, QC former Solicitor-General, it is clear that the government have come under attack from lawyers, who do not like the way they are eroding a fundamental right of access to justice, particularly for the poor and needy, many of whom are also abuse victims, and much in need of help. Sir Edward was justifying the cuts on the basis of the economic climate, and other methods of helping people such as mediation etc.

We act for the victims of abuse, but can only help one aspect of their problems - seeking justice for the abuse they suffered years ago. We would be unable to assist them with debt, housing, CICA claims, social welfare, or any of their other myriad problems after April because the government have taken away their fundamental right to access to justice. Were it not for some very vigorous campaigning on behalf of the victims of abuse, no doubt the government would have taken away legal aid  for abuse compensation claims.

One can imagine how the media would have dealt with that one if the government had gone the wrong way - put children in care and subject them to abuse, then when they have the courage to do something about it years later, take away their rights by denying them legal aid even though they cannot afford to pay for a lawyer? Thankfully this is a fictitious rather than a real position.

When the bill went through Parliament, it was defeated 14 times in the House of Lords, who ultimately backed ministers by the narrowest of margins, with 238 votes on each side - a tie means a victory for the government. Hardly a unanimously popular bill with whole hearted support from both sides of the political divide, as sometimes happens.

The papers dealt with different aspects of the Neuberger interview. Some went for the way in which he was responding to Theresa May's criticism of judges, who allegedly were "ignoring" rules on deporting foreign criminals.He said he would not get into a "slanging" match with Mrs May.

The interview came two weeks after Mrs May accused judges of making the UK more dangerous by ignoring rules aimed at deporting more foreign criminals. She told the Mail on Sunday that they were choosing to "ignore Parliament's wishes".

"I think attacking judges is not a sensible way to proceed," Lord Neuberger said.

So how do the comments of May and Neuberger breach the separation of powers principle? Fundamentally and simply - leave governing to the government, and judging to the judges. Government should respect the decisions of judges, and not criticise them.

When government interferes with judges decisions, the ultimate result is a state run judiciary, corruption, and a dictatorship. Lawyers are silenced if they protest, which they usually do if justice is not being done. Life gets out of balance - the scales of justice are not even. When you take away legal aid, the scales tip alarmingly in the wrong direction - in favour of those with money and against those without.

Similarly, if judges criticise government, then they are usurping their function. The example given to us as law students was judicial review cases, where the courts are asked to criticise governmental decisions. Arguably these types of case are a vital form of check and balance on the wrongful exercise of powers without consultation by government. In the news recently were plans to "streamline" judicial reviews by the Ministry of Justice. Thankfully they have launched a consultation on the changes - a process which results from judicial review decisions in itself. The Law Society Gazette headline, however was, "Judicial review changes could be harmful"

I don't think Lord Neuberger was overstepping the mark by responding to criticism of the Home Secretary. He was defending his judges and the separation of powers. It was May who should not have tried to interfere with judicial decisions, and the way in which Human Rights are interpreted by the Courts. At one time, however, the Head of the Supreme Court, would never have given an interview, and would have remained silent.

At the end of the day, the government cannot complain about laws which they give to judges to interpret. Judges simply interpret what they are given. If government don't like the result of cases, then it is up to them to change the law. When laws come into force, every consequence cannot be foreseen. The law of "unintended consequences" is not uncommon.