Balancing rights and responsibilities
“The truth is that publicly perceived and generally accepted social and moral standards change, and, within limits, the legislature and the courts must reflect those changes, if they are to retain democratic relevance and public confidence”, said the new Master of the Rolls, Lord Neuberger of Abbotsbury, at the 2009 Denning Lecture.
Speaking on the topic of “Rights and Responsibilities: Civic Duty and the Rule of Law”, Lord Neuberger stressed the importance of performing a balancing act. “What a sixty years it has been”, he noted since Lord Denning himself defined freedom in 1949 as “the freedom of every law-abiding citizen to think what he will, to say what he will, and to go where he will on his lawful occasion without let or hindrance from other persons”.
Lord Neuberger stated that there are “immutable” values although it is impossible to be didactic or precise as to the extent of these core values. He however was able to name several. Chief amongst rights and responsibilities are the right of a fair trial as a “substantive, free standing right”, the right to liberty and security (including the “right to privacy” which the courts have shoe-horned into the law of confidence), and freedom of expression, which is “the means by which truth is told to power”. Rights and responsibilities though need respect (“the more we think of them as being well established, the greater the danger of our taking them for granted”). “Human rights may have a long history,” he noted “but their universal acceptance remains an ongoing project”. It is here that the judiciary and politicians have to strike a balance between rights and responsibilities—how to balance one right against another, how to balance a right against its “internal limits” and how to balance it against an overarching need to protect the very life of the nation”.
He recognised that the courts have double duties, eg not only not to act inconsistently with the right to a fair trial but also positively to secure a fair trial. He concluded by endorsing the views of his famous predecessor that when the interests of freedom are “nicely balanced” against the duties which restrict them, “the scale goes down on the side of freedom”.
The 2009 Denning Lecture was given at a BACFI meeting on 23 November 2009.
