On 14th October 2016 Lord Neuberger, President of the Supreme Court of the United Kingdom, delivered the second biennial Lord Rodger Memorial Lecture to a packed and enthralled audience of members and guests of the Royal Faculty of Procurators in Glasgow. The first such lecture was given by Baroness Hale and is available here. Lord Neuberger’s title was “The constitutional role of the Supreme Court in the context of devolution in the UK”. The full text of his address is available here. This is not a report of that event. However, consideration of Lord Neuberger’s exposition, in the context of the insight into the role of a constitutional court provided by the German decision of 26th July 2016, has potential significance for practice and pleading in the mental capacity and adult incapacity jurisdictions of the United Kingdom. Lord Neuberger described not only the developing role of the Supreme Court as a quasiconstitutional court (my term, not his), but also the extent to which any court might find itself applying the principles which the Supreme Court is developing, as described by Lord Neuberger.
Before I heard him, a draft of this report on the German decision made the obvious comment that the role played by the German Constitutional Court in its decision of 26th July 2016 was, in the case of the United Kingdom, “somewhat echoed – perhaps faintly” in the role of the courts in determining whether the legislation of a devolved legislature is within its competence (in the case of the Scottish Parliament, inter alia by reference to the provision that legislation is ultra vires if not compliant with ECHR).
This was, however, but one of the areas identified by Lord Neuberger where the UK Supreme Court is developing a role akin to that of a constitutional court. He described a modification to the application of the concept of the absolute supremacy of Parliament. Formerly, any statute would be considered as repealed, even if not explicitly so, by a subsequent inconsistent Act of Parliament. Increasingly, the Supreme Court has recognised that some statutes have special constitutional status so that it will be more difficult to displace them. The Scotland Act is one such. Applying the principle of legality, provisions of such statutes – and rights conferred by them – may be so fundamental as not to be alterable by subsequent inconsistent legislation, unless the intention of Parliament to alter them is, in the words of Baroness Hale14, “crystal clear”.
One can compare this “two-tier” view with the treatment in the German decision of legislation incompatible with the GG. One could suggest that the principle of legality might cause the Supreme Court to echo the German Constitutional Court in declaring that an existing statute ought to be extended to fill a lacuna, pending corrective legislation.
Lord Neuberger suggested that the duty of the courts to prevent violation of the rule of law might result in outcomes unimaginable more than two decades ago. One might suggest that this could occur in relation to apparent incompatibility of UK or devolved legislation with fundamental rights enshrined not only in ECHR, but in instruments such as the CRPD. Similar issues could arise in relation to a determination as to whether legislation designed to secure compliance with such an international instrument might be within the competence of a devolved legislature. Among many examples could be a scenario considered at a seminar at Edinburgh Napier University also on 14th October 201615, namely legislation by the Scottish Parliament to remedy the lack of the safeguards required by Article 12(4) of the CRPD (as well as apparent violation of ECHR) in the current provisions for receipt and administration of state benefits by DWP appointees, which provisions are currently embedded in legislation in the reserved area of social security provision.
The potential impact of the developing principles described by Lord Neuberger, especially in relation to the rights and status of people with intellectual disabilities, is considerable. This could lead us more frequently into application, or at least consideration, of jurisprudence developed by constitutional courts formally established as such, as exemplified by the decision of the First Senate of the German Federal Constitutional Court in its decision of 26th July 2016.