Again showing that he is never unwilling to tackle the most controversial legal issues, Lord Neuberger gave the second Lord Alexander Wheedon lecture last Wednesday on the thorny issue of Parliamentary sovereignty. In his lecture entitled ‘Who are the Masters now?’ he examined the relationship between the legislature and judiciary – arguing that it is of particular current relevance given that:

First, there are suggestions in newspapers, articles, and even in one or two judgments, that the judiciary may, in some circumstances, be able to claim supremacy over Parliament . . .

Secondly, some disquiet has been expressed in the press, and by others such as my erstwhile colleague, Lord Hoffmann, about the apparent creeping supremacy of the Strasbourg Court. Thirdly, and most fundamentally, we live in a society governed by the rule of law, and there can be an inherent tension between the notion of the supremacy of a democratically elected legislature and the rule of law”

In the lecture Lord Neuberger robustly defended the continuing supremacy of Parliamentary sovereignty – while recognising the impact of the Human Rights Act 1998 on both the profile and decision making process  of judges. But his overall conclusion was that:

the idea that Parliament is no longer legally sovereign and that the judiciary, whether at home or in Strasbourg, are the masters now is quite simply wrong.”

However, a recognition that Parliament remains sovereign, and that judges should restrict the themselves to statutory interpretation rather than creation, should not be an excuse of argument for ‘judicial passivism’.

In our present complex fast-moving society, the judges have a vital role to play. First, we must not just interpret the law enacted by Parliament in a blinkered unimaginative way. With the welter of legislation, much of it ill-drafted, we should interpret statutes in a practical way, as Lord Phillips explained in last year’s lecture. Secondly, we must develop the common law so it reflects the changing needs and standards of society. That sometimes means moving the law on when Parliament has not got the legislative time, or even sometimes when it has not got the political will to do so. Thirdly, we must be vigilant to protect individuals against any abuses or excesses of an increasingly powerful executive. That by no means only involves human rights: the development of the judicial review jurisdiction in the thirty years before the Human Rights Act came into force is testament to the value of controlled judicial activism.

“But in carrying out these three vital functions, we should never overlook our primary duty in every case, which is to decide each case according to the law, and we should never forget that, however we develop or apply the law, we cannot go against Parliament’s will when it is expressed through a statute.

Lord Neuberger’s lecture in some ways reflects constitutional orthodoxy – and as Adam Wagner points out does leave open the “very difficult question of what would happen if parliament did something which clearly ran foul of the rule of law and fundamental rights. Other senior judges have argued that this would lead to a genuine clash, and courts may be forced to lose their traditional deference. This would only happen in the most extreme scenario. But in time of terrorism and war, is by no means unimaginable.

However, such situations do at present (fortunately) remain in the imagination of commentators, and it may be argued that the ongoing speculation as to what the courts would or would not do in the case of Parliament running amok does little to clarify the central issue as to the nature of the relationship between the legaislature and judiciary. In any case if such a scenario were to happen (for example, if Parliament were to abolish regular elections) then the courts – in telling Parliament that what they had done was beyond the pale – would merely be informing Parliament of its existing obligations under international treaties and under the European Convention of Human Rights, and also its fundamental democratic duties. Arguably they would still not be challenging Parliament’s sovereignty, but reminding Parliment of the limitations that it has voluntarily imposed upon itself –  fulfilling a similar function to those whose unfortunate job it was to remind victorious generals in Roman triumphs that ‘“Respice te, hominem te memento” (“Look behind you, remember you are only a man”).