Why are the leading judges of the United Kingdom such wimps? I asked myself this question again after listening to Lord Neuberger, who was president of the Supreme Court for five years until he retired in 2017, speaking last night at The Convention, on dark money, the rule of law and our democracy. He gave an eloquent, chilling description of the tensions and failings of the political system as revealed by the Brexit referendum and its aftermath. But he drew back from the obvious conclusion that it is time to make the constitution our own and write it down, so that it entrenches fundamental checks on power.
At least Neuberger had the courage to take an overview in a public forum. But his reluctance to draw the obvious conclusion is becoming a tradition. Lord Bigham is a notable example. He was Master of the Rolls and Lord Chief Justice and played a leading role in the creation of a separate Supreme Court after 2005. Bingham was rightly concerned at the way some of his colleagues on the bench thought of themselves as above parliament and were careless of the need for democratic legitimacy. But he too drew back in his book on The Rule of Law from drawing the obvious conclusion.
I have reflected on this because I knew and worked with the outstanding exception, Lord Scarman. He was a tough and by no means a liberal judge who became a public figure when he headed the investigation into the 1981 riots. He was the figurehead of Charter 88, the most distinguished public figure to break ranks and join its call for constitutional revolution.
