Lord Neuberger's Keynote Address

800 YEARS OF JUSTICE: MAGNA CARTA TO UN SDG 16

A REFLECTION ON THE RULE OF LAW AND ITS PLACE IN A FAIR AND FUNCTIONAL SOCIETY

LORD NEUBERGER’S KEYNOTE SPEECH IN OPENING SESSION OF ‘JUSTICE FOR ALL’ SERIES

My topic this evening is the Rule of Law and its place in a fair and functional society. The rule of law is an expression which is used to cover two somewhat different concepts. The first, more basic meaning involves a society being run according to laws, in contrast with societies which are anarchic, or are run by arbitrary decisions of dictators. The second, more sophisticated and more often discussed, is concerned with the contents of the law, and in particular fundamental individual rights.
The more basic concept has certain essential characteristics. First, the laws which impose rights and duties must be both physically accessible and reasonably comprehensible, as people have to know what their rights and obligations are. Secondly, the laws have to apply to everyone, including rich and powerful individuals and companies, the government, and the people in the government. Thirdly, the laws must be effectively enforceable by those with rights, and effectively enforced against those who breach the law.
Effective enforcement raises a need for an effective police force to bring law breakers to justice. It also means that we need courts with judges who are independent, impartial, competent, whose processes are efficient, whose decisions are respected and enforced and to whom anyone with rights has access, and before whom people who break the law can be brought and dealt with. If people have rights, but they do not have access to the courts to enforce their rights, or if people see the law being flouted without redress, the rule of law is a hollow shell. And if court proceedings take forever, the rule of law is a bit of a mockery.
In addition, we live in a world where the law is increasingly complex. So, access to independent, properly trained lawyers is an ever-more essential ingredient of the rule of law. Legal experts are needed to advise and to speak for individuals and companies and to assist the judges, when it comes to identifying, interpreting and applying the laws. If access to lawyers for advice or for representation in court is restricted to the rich or the few, you do not really have the rule of law.
The second and more ambitious version of the rule of law takes these requirements of the first version for granted, and it effectively involves the state according to all its citizens the sort of rights which are to be found in the European Convention on Fundamental Rights and Freedoms (ECHR) and other human rights treaties across the world. For instance, freedom from torture or from arbitrary imprisonment, freedom of expression, of religion, and of assembly, the right to privacy, and to family life, and freedom to go to court, and to marry (but not, at least in my view, the freedom to bear arms).
These rights are the subject of Lord Bingham’s famous book entitled The Rule of Law[1], and they reflect an important principle, namely that, while the interests of society require individual rights of self-determination and self-expression to be curtailed, the curtailment should be kept to a reasonable minimum.
There is a lot of discussion and controversy about the effect of some of these rights, including whether UK judges are too involved in deciding ECHR cases and even whether the UK should remain in the ECHR. As to that latter issue, it may be a cheap point, but I would suggest that much is revealed about you by the company you keep, and, if we left the ECHR, we would be joining Russia and Belarus, which are currently the only two European countries which are not parties to that Convention.
But, more relevantly for this evening, judges have to be involved in deciding the contents of a human right, and whether it has been infringed. It’s no good giving people rights if they can’t enforce them, and the only effective way rights can be interpreted and enforced is by independent tribunals. It would be a travesty if the government decided such cases, given that most human rights claims are against the government. And, if politicians don’t like the way the judges are developing the law, they can change the law through parliament, thereby overriding any judicial decisions.
But, rather than saying any more about human rights this evening I want to concentrate on the basic rule of law. It is more essential and more timeless than the human rights version law of rule of law. More essential because you cannot have the fundamental human rights unless you have basic features of the rule of law – clear available laws, universal application of the law, access to competent, fearless lawyers and access to independent effective courts, – in place. And the basic rule of law is more timeless than the sophisticated version. The features of the basic rule which I have just summarised would have been recognised by civilised societies millennia ago. By contrast, virtually every human right which I have mentioned would not have been recognised even by most contemporary respected thinkers in this country 500 years ago.
And the basic rule of law is one of the most fundamental cornerstones of a civilised society. It is not just morally right that society is governed by the rule of law in the basic sense. I would suggest that that the three most fundamental requirements of a modern civilised society is that its government (i) is democratically elected, (ii) defends the country from attack from abroad, and (iii) maintains and enforces the rule of law at home. Without these three fundamental features, it would not be easy, even possible, to deliver in any reliable way the other modern functions of government –such as social security, health, education, indeed, human rights. Without democratic accountability, a government would have no credibility; without defending the realm, we would be subject to foreign attack and domination; without the rule of law, society would either fall apart or be utterly downtrodden.
And while democracy is the subject of much more public discussion. I suggest that the rule of law is even more important for a civilised successful society. Apart from the odd short-lived little spurt such as 4^th/5^th century BC Athens, democracy is a relatively new concept, while the rule of law had been around for millennia. And democracy didn’t stop Hitler or Mussolini.
But it’s not just moral and societal factors which make the rule of law so important. Countries which enjoy the rule of law, and have effective democratic institutions are much more likely to be peaceful and economically successful. Research carried out by Daron Acemoglu, Simon Johnson and James A. Robinson, winners of last year’s Nobel Prize for Economics, demonstrates just how important it is for peace and economic success for a country to have the rule of law[2]. They contrast countries which enjoy the rule of law, broad political participation, and respect for property rights, with countries which lack these institutional qualities, and show how the former countries outperform the latter ones economically, often to a very substantial extent. And when you think about it, that’s not surprising. Businesses would think long and hard before investing in a country, where they could not be sure that their contracts, debt claims, employment arrangements would be honestly and effectively enforced by independent and competent courts.
In this country we tend to look back to Magna Carta for the origin of the rule of law. And that is not unreasonable. Having acquired the country by force in 1066 , William the Conqueror was effectively a dictator. While his immediate successors offered the people (mainly the barons, it is fair to say) legal rights, it was largely as a result of wanting to start off on the right foot or fighting off a rival. It was only when the deeply unpleasant and hopelessly inept King John (probably one of our three ever worst Kings), William the Conqueror’s great-great-grandson, so disgusted his barons that they invited the Dauphin, son of King of France to take over the Crown, that the King was forced in 1215 to make a genuine deal which really started to enshrine the rule of law in this country. However, for all its fame, the Magna Carta of 1215 was short-lived, indeed almost still-born. The faithless King John characteristically disowned it within weeks of sealing it, and he got his friend the far more redoubtable Pope Innocent III to agree.
But the following year, King John did something uncharacteristically public-spirited; he died. To rally support for his young son, the great William Marshall reissued the Magna Carta, and it did the trick: the Dauphin was sent packing. For the next 200 years, Kings would reissue the Magna Carta from time to time to assure people that they were committed to the rule of law, most relevantly 800 years ago in 2025. And while it has been seen as having varying significance over the past 600 years, it perceived importance has never been in doubt. Magna Carta gets no mention in Shakespeare’s King John around 1595, but it was revived by Sir Edward Coke’s foundational Lawes of England, which he started publishing in 1600.
Of Magna Carta’s 61 chapters, only four survive in a form contained in the 1297 version. The two most famous are chapters 39 and 40 which sound a trumpet for the rule of law. (The other two chapters that survive recognise the freedoms of the English church, and confirm the ancient liberties of the City of London). Chapters 39 and 40 famously state:
(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.
(40) To no one will we sell, to no one deny or delay right or justice.
Here we have the glimmering of the rule of law, and it is interesting to note that 50 years after Magna Carta, with its glimmering start of the rule of law, England saw the first glimmering of democracy when Parliament was first summoned in what is now just about a recognisable way. Things developed thereafter on a somewhat fits and starts, two-steps-forward-one step back way. It took the deposition of two Kings, Charles I and his son James II in the 17^th century to give us a democratically elected House of Commons in a recognisable form (albeit initially with a tiny franchise) and an independent judiciary (albeit initially not a very enlightened one).
This country has much to be proud of when it comes to its record in democracy and the rule of law. We are unique in being the only substantial country which has had an uninterrupted, increasingly democratic government for over 300 years – since 1688. By contrast, for example, Italy, Germany, the USA did not even exist then; and France, Japan, and indeed Germany and Italy, have had dictatorships, invasions and revolutions. We have an almost unique constitution: instead of a single coherent document, we have a make-it-up-as-you-go-along collection of conventions and statutory provisions which have no special constitutional status, in that they can be repealed like any other statute. One of those conventions is Parliamentary supremacy, which means that a UK Court cannot override statutes and that, as I have mentioned, Parliament can reverse judges’ decisions. This has helped ensure that politicians stay out of the appointment and promotion of judges and you only have to look across the Atlantic Ocean to see how sensible that is. And, although we hear complaints about “overmighty unelected judges”, UK judges are less mighty than most judges across the world, and as for their unelected status, long may it continue.
And when it comes to the rule of law, in addition to having an impressive and internationally respected judiciary, we are the country which invented and fashioned the common law, and we have a world-leading legal profession. It is a combination of these factors which has helped make London the number one global international legal centre, which benefits the UK’s international standing and our domestic economy.
But, I am sorry to say that when it comes to the concerns of ordinary people caught up with the criminal, civil or family justice systems, we are in a much less satisfactory situation, and we ought to be doing much better.
In contrast with high-value civil cases where legal costs are rarely crucial, the plight of ordinary people with ordinary problems in civil and family cases is disturbing. The Justice Committee of the House of Commons in a report four months ago described the County Courts (where the great majority of civil claims are heard) as “dysfunctional” with systemic delays, and a “myriad of incompatible systems and outdated paper-based processes”.[3] And, while there has been some recent improvement in hearing times in family cases, they still take far too long. The average child-care case in the family court takes much more than the official maximum of 26 weeks to be processed. Last year, over 4,000 children were involved in proceedings which lasted more than two years.[4].
Legal aid for advice and court representation in civil and family cases, which was barely adequate in 1996, has been progressively shrunk in both scope and quantum over the past 30 years. Let me give just two examples. As at 2024, legal aid fees for civil cases had not merely remained static since 1998: they were decreased by 10%[5]. This is astonishing given that the value of money has halved in that time, and it is hard to rejoice at a small increase in rates this year. In 2024, 40% of family court cases involved neither party having legal representation (compared with 14% in 2013)[6], sharply increasing the risk of injustice and wasting court time. And behind these figures lies the strong likelihood of people with rights not being aware of them or not having the ability or courage to enforce them.
The UK is by no means alone in these problems. Sustainable Development Goal 16 (SDG 16) is one of the 17 Sustainable Development Goals established by the United Nations in 2015. Its officially described aim is to “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels”. SDG 16 includes Target 16.3, which is to “Promote the rule of law at the national and international levels and ensure equal access to justice for all”.
A 2023 Paper[7] on Target 16.3 published by the OECD and New York University accurately summarises the importance of this target:Timely and affordable access to the justice system can significantly impact people’s lives. Increasingly complex, slow or inaccessible justice systems jeopardise the ability of people to enforce their rights or hold those in power accountable. This can, in turn, undermine democracy and the rule of law. Indeed, when justice systems are seen as inaccessible or serving just a few, frustration, disillusionment and discontent follow, which can have significant social consequences.
The Paper goes on to refer to a recent international survey which reported that just over half (57%) of people, on average, trust the courts and legal system today. The paper also records that analysis of 150 surveys shows that “less than one-third (29%) of people who experienced a legal problem sought any form of advice to help them better understand or resolve their problem”, and “even fewer (17%) took their problem to an authority or third party to mediate or adjudicate their problem”.
But the fact that other countries have similar problems to those of the UK is no reason for ducking the issue of what to do about the problems of access to justice.
In that connection, it is distressing to see literally hundreds of millions of pounds being spent each year on lawyers and civil servants in prolonged public inquiries, when the money could be spent on the justice system. At least some of the Inquiries were plainly necessary – for instance, the Infected Blood, the Post Office Horizon IT, and the Grenfell Tower, Inquiries to name but three. And I intend no criticism of those involved: on the contrary, all the Inquiries I have observed have been conducted impressively and according to existing rules and expectations. But it is those rules and expectations that concern me: I cannot help thinking that the whole structure of our public inquiries needs to be reconsidered, so that they can be conducted much more cheaply and report far more quickly. It doesn’t have to be like this: in 1912 Lord Mersey issued his report following his Public Inquiry 3½ months after the sinking of the Titanic[8]. When writing this lecture, I feared I was going to say that I saw a strong case for an inquiry into Inquiries. But much good work has been done in a 2024 House of Lords Report on Public Inquiries[9]: I hope it will be taken forward.
I have direct experience of the aftermath of the 2017 Grenfell Tower disaster, as I was one of two co-mediators of all the civil claims made by survivors. It was clear that many of them felt that, while the Inquiry was conducted impressively and produced an impressive report, it did not provide a satisfactory platform for them as survivors, which is unsurprising as that was not its function. But, ironically, it was perceived as delaying the progressing of their damages claims as the defendants and their advisers were concentrating on the Inquiry. Whether or not that is right, there is no doubt that the Inquiry did delay what some of the survivors thought was the most important involvement of the law, namely the police addressing whether to bring criminal proceedings. Instead of that exercise starting in 2017, it has had to wait nearly eight years, until the Inquiry was over. That was, to put it mildly unsatisfactory for the survivors – but also for the potential criminal defendants.
In a more positive note, the mediation not only resulted in over 1000 claims being settled, but it ended with an event called Testimony Week. This involved four days in Church House where, in the presence of very senior representatives of all but one of the defendants, any survivor who wished to do so was able to talk about Grenfell. Some gave in-person talks, some spoke on pre-prepared videos, some gave interviews, some made films. Some talked about life in the Tower before the fire, some spoke about the fire, some talked about their post-fire life, some remembered those who died. It was very important to the many survivors who took part or who attended that this was their event, that their personal autonomy and their pain was being recognised, and that those who they regarded as responsible were listening.
When disasters occur again, as they will, I hope that those responsible for making decisions will consider whether an event like Testimony Week should be initiated. Apart from being of great value to the victims and survivors, its cost was tiny compared with the Public Inquiry – and that cost was borne by the defendants as part of the mediated settlement.
But I would like to end by reverting to the state of our criminal justice system, not least because it is the aspect of the rule of law which most people care about and know about. In that connection, there are three categories of people on whom we should concentrate. Victims, Defendants, and Leavers.
When it comes to treatment of people accused or convicted of crimes, I cannot do better than quote what Winston Churchill said 115 years ago, when he was Home Secretary[10]The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm and dispassionate recognition of the rights of the accused against the state and even of convicted criminals against the state, …. a desire and eagerness to rehabilitate … all those who have paid their dues … – these are the symbols which in the treatment of crime and criminals mark and measure the stored up strength of a nation, and are the sign and proof of the living virtue in it.
How are we doing on Mr Churchill’s test of our civilisation and living virtue? Not very well, I am afraid. When it comes to getting to trial, in the Crown Court (where all the most serious criminal cases are heard), there is a backlog of over 75,000 cases, and in the Magistrates Court the backlog of less serious cases is over 300,000 – in each case a more than 10% increase since 2024, when the figures were a record high[11]. Trial dates are often currently being fixed for the back-end of 2027. Delay involves increased stress and prolonged uncertainty for all involved, increased costs, and increased risk of lost witnesses and failing memories. In addition, almost half the Crown Court cases have their trial date postponed (often without any explanation)[12].
These delays and postponements are inconsistent with the rule of law, and are unfair on those accused of crimes. It is quite wrong to keep a criminal charge hanging over the head of an innocent defendant any longer than is strictly necessary, and, in a civilised society, guilty defendants, even serious criminals, are entitled to prompt justice. And many accused people are held in prison until trial, which is.
And, of course, for victims and survivors of crime and their families, especially in cases of murder, rape, and other serious physical and sexual assault, delays and postponements increase the already heavy burden of trauma. As the Victims Commissioner said[13] about the history of delays and postponements,, “I fear this will drive some victims to give up on seeking justice altogether – a second injustice compounding the first”.
For a long time, victims were regarded as almost irrelevant in criminal proceedings, save as a source of evidence. The theory was that they would be looked after by the civil courts where they could recover damages. In virtually every criminal case, that is wholly unrealistic: the perpetrator is very rarely worth suing, the costs will normally be prohibitive, the outcome may sometimes be uncertain, and the trauma will often be unacceptable. The importance to victims, even more to survivors, of crimes of the perpetrator being brought to justice is therefore vital. As mentioned, this was vividly brought home to me in the Grenfell Tower mediation. It must seem worse than ironic to most of those victims and survivors that we think it right to ensure respect for the rights of a person who is then shown in legal proceedings to have committed a crime, particularly a serious intrusive crime, while they are treated as little more than incidental, bit-part players in those proceedings, and even behind the scene. Over the past 25 years, we have given victims and survivors a role in court and more general consideration, but, as the observation I quoted from the Victims’ Commissioner’s statement shows, we are falling short and could surely be doing much more.
And when it comes to prisons a March 2025 report by the independent respected by the Institute for Government[14] begins with this:“The prison system in England and Wales is in an extremely poor state. Levels of violence, self-harm and drug use are shockingly high, prisoners’ work and education opportunities severely limited. Buildings are crumbling or in severe disrepair, many dangerously so, and physical conditions often unsanitary. Inexperienced staff are struggling to cope with these increasingly fraught circumstances.
And when it comes to leavers – people leaving prison – we do very little by way of rehabilitation to prepare them for life after release, although that is one of the main justifications for prison. And we do little to help them when they are released. This means increased recidivism – which is around 25% generally and 33% among young offenders[15], which is both inhumane and contrary to the social and economic interests of society.
It is right to acknowledge that this government is trying to do something about these problems in our criminal justice system. So far as trials are concerned, Sir Brian Leveson has come up[16] with some goods proposals for helping to fix what he justifiably calls a “broken system”. They include removing juries from long, technical financial criminal cases. I agree with him on that. Objections on the basis of a notional right to a jury trial are misconceived: the great majority of criminal cases are already not decided by juries. There is no suggestion of removing juries generally from the criminal justice system. Ultimately the decision as to which sorts of trial should and should not involve juries, like many decisions in that system, has to be decided by deciding what is the best, or the least bad, way of delivering criminal justice overall for the money available.
And when it comes to prisons, the recommendations of David Gauke’s report[17], which includes that judges try and steer clear of short term sentences, which involve clogging up the prisons with people who face an often long term loss of jobs and loss of family life, without any opportunity for rehabilitation seem similarly well-judged.
Improving the rule of law ultimately comes down to political will, and the appointment of strong ministers with real commitment and experience, such as Lord Timpson and Lord Hermer, who will hopefully help break the downward spiral is to be welcomed. And the legal profession and the judiciary have an important part to play too.
But we all have to face up and discuss these very serious problems publicly and make people properly aware of their existence, their importance and their possible solutions. That is why I am so pleased to have been invited to give the opening salvo in this very important series of seminars an discussions.