UK Supreme Court justice delivers lecture on court’s role in protecting human rights

In the address, Lady Hale explores the evolving relationship between the courts and parliament, paying particular attention to the role the UKSC plays in protecting fundamental rights within the framework of the law. Lady Hale said:

It is fascinating to be delivering a lecture in memory of James Bryce today. He had a career which would surely be impossible these days – Regius Professor of Civil Law in this University (1870 to 1893), Member of Parliament for Tower Hamlets and then for South Aberdeen (1880 to 1907), ministerial office in three Liberal Governments, Ambassador to the United States of America (1907 to 1913), President of the British Academy (1913 to 1917) and serving at the Permanent Court of International Justice in The Hague. A lesser known fact about him is that he was also Professor of Jurisprudence at Owens College in Manchester (1870 to 1875), the forerunner of the University of Manchester. Another Oxford academic who taught at Manchester in the early days was Albert Venn Dicey, his great friend and almost exact contemporary, who held the Vinerian Chair of English Law in this University from 1882.

Both were constitutional lawyers, but Dicey is the better known to law students today. There were two major planks of our Constitutional Law as he saw it:

(1) that Parliament is sovereign and can make or unmake any law; and

(2) that everyone is subject to the same rule of law; this includes the Government and public officials, who must act within the powers which the law has given them.

In many respects, the Constitution which we have today would be easily recognisable as the same constitution which Bryce and Dicey knew. It is still unwritten. The legislature, executive, judiciary and head of state remain much as they then were. Dicey’s two principles are still the foundation of our Constitutional Law. But in many respects, the Constitution which we have today would have been unrecognisable to Bryce and Dicey. Some may think that this is the great virtue of an unwritten constitution – that it can change and develop with changing times. Others may think that there are some things which it should be rather harder to change than it currently is.

So what has changed since their day? In particular:

(1) Where stands the sovereignty of Parliament, given the ceding of legislative competence both downwards – to the devolved Parliaments in Scotland, Wales and Northern Ireland – and upwards – to the law-making powers of the European Union?

(2) Where stands the rule of law in this new world? To what extent have the courts gained power to rule, not only on the validity of acts of government, but also on the validity of our laws? The rule of law has always been the servant of Parliamentary sovereignty – the courts ensuring that public authorities stay within the bounds of the powers which Parliament has given them – but could it be that the rule of law is gradually taking over as the organising principle of our constitution?

Modern developments mean that the role of the courts, and the highest court in particular, is very different from the role of the courts in Bryce’s day. This would be so whether or not the appellate committee of the House of Lords had been transformed into the Supreme Court of the United Kingdom but it certainly made that change more necessary. In a sense undreamt of in Victorian times, the Supreme Court has become a real constitutional court.

The full speech is available here.