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The role of judges in a modern democracy: Magna Carta lecture, Sydney: 13 September 2006



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THE ROLE OF JUDGES IN A MODERN DEMOCRACY

MAGNA CARTA LECTURE

SYDNEY, AUSTRALIA

RT HON LORD FALCONER OF THOROTON

LORD CHANCELLOR AND SECRETARY OF STATE FOR CONSTITUTIONAL AFFAIRS

WEDNESDAY, SEPTEMBER 13, 2006

Good afternoon.

It is, for me, the greatest pleasure to be here in Sydney to deliver this Magna Carta lecture. This

week, in your impressive Parliament building in Canberra, I saw Australia's own copy of the Magna

Carta itself, which is held and proudly and rightly displayed there, setting out the freedoms and the

values which help form the bedrocks of democracy. Looking at that extraordinary document, signed

in 1215 but which this lecture series is designed to resonate in our modern world, I was struck by one

of its proclamations in particular:

"To no-one will we sell, to no-one deny or delay right or justice."

These are fine words: fine words then, and fine words now - and they remain central ambitions and

commitments of our democracies today.

The shared constitutional history which the Magna Carta here and the Magna Carta held in the British

Library in London demonstrate is a fundamental connection between the UK and Australia. Vital

though that is, our two countries of course share much more. In the UK, as in Australia, we live in

thriving, liberal, dynamic societies. Modern democracies which afford us security, freedom and

prosperity. My time here and in Canberra this week - my first time ever in Australia - has given me at

least a glimpse first hand of what a remarkable place Australia is. Our two countries are separated by

great distance, yet united in the values on which our societies are based. In some small way, I hope

opportunities such as this Magna Carta lecture series will strengthen this bond, and enable us to share

our experiences and learn from each other in preserving those democratic values that we hold so

dear. We live in a world in which the fundamental rights and freedoms we share are coming under

increasing threat. Australia, like the UK, is meeting the many challenges facing the world today. Our

judicial system and our judiciary is central to meeting those challenges. It is the issue of the role of

the judiciary in a modern democracy which I want to address in this lecture tonight.

What I want to argue tonight, focusing in particular on both terrorism and human rights, is that the

role of the judiciary, especially in relation to politics, is changing, and that we both need and are

seeing the establishment of a new form of the relationship between the executive, the legislature and

the judiciary. What I want to argue is that we have seen with greater clarity in recent years the need

for judges to protect individual rights in a much more transparent way than in the past. That we are

asking judges to take decisions which have formerly been left either to the executive without restraint

or to Parliament. That this changed role means judges are doing things which bring them much more

into controversial areas than in the past. That at the same time, politicians need to be increasingly in

those areas as well. And that it is this overlap, this congruence, which needs recognition so that the

overlaps can be more easily dealt with. We do not need a new constitutional arrangement. We do

need better understanding between the three areas of our democratic state.

Democracies can only survive where judges have the power to protect the rights of the individual.

Democracy is not just a process of electing those who govern us. It is also a political philosophy

which believes in the critical importance of the rule of law, that says we are all equal, with an equal

say in how we are governed, and with the right to be treated without discrimination. That democratic

principle of equality and the right to be free from discrimination must be enforceable and recognised

in ways other than simply the intermittent right to vote for a government. Otherwise it is empty

words. Each individual's personal rights and freedoms can only be given effect to by protection under

the law. The extent of that protection will involve judgements on whether executive action has

exceeded the limits of freedom and freedom from discrimination to which the individual is entitled in a

modern democracy.

Beyond those issues of fundamental freedoms, the judges in the UK are increasingly making

discretionary decisions about a whole range of issues where political controversy is involved, for

example sentencing, or child care, or medical treatment for the gravely ill. The same is true for

democracies around the world. Many of these areas are ones where judges have been engaged for

generations. But they increasingly traverse terrain well tilled by the politician as well. The increased

presence of judges in areas of decision formerly occupied exclusively by politicians, and that of

politicians in the areas of decision which have been left to the judges makes it apposite to consider

what framework best ensures a justice system able to take these sorts of decisions without forfeiting

public confidence.

We expect our judges to make decisions that have significant effects on issues in the political

domain. Yet at the same time we do not want them to be political. We want them to understand.

And we want them to retain their anonymity, and their objectivity. In our constitutional system it is

not appropriate for them to become like Supreme Court Judges in the USA, sometimes selected for

their pre-existing views, and thereafter ploughing a political furrow. The more judges are taking

decisions which are in the political arena - not in the sense that they are party political, but in the

sense that they are dealing with issues that politicians also address - the more their 'democratic'

legitimacy comes into question. Of course judges are not elected. Nor should they be. But if they

are determining issues which effect people in their daily lives, and over which the people expect to

have some control, the question is raised: how do they connect with, and retain the confidence of the

public, without forfeiting either their independence or their very role in deciding cases in accordance

with the facts before them, and the relevant legal principles?

Let me, if I may, give you three pictures from the last 10 years which seem to me to illustrate those

tensions. First: when I was housing minister in the UK government formed in 1997, I would be taken

by local authorities to the worst housing in their area. People living there would never complain about

their housing. They would always complain instead about crime, and would say the courts didn't

understand, they didn't do anything. Second: a senior judge expressing the view that the position of

judges becomes more difficult when both main political parties of the UK take a tough line on crime.

And third: a senior Cabinet Minister of the day expressing genuine bewilderment that the courts could

have struck down his counter-terrorism legislation.

I would argue that there are some essential elements to a successful judiciary in a modern

democracy. First, a framework for the appointment of judges which ensures that there is a

transparent and fair system of appointment. In England and Wales, we have recently changed the

process for the appointment of judges. That process must involve the executive so that there is both

parliamentary accountability in the system of appointing judges, and a shared responsibility between

executive and the judges for defending those who are appointed. But, crucially, it must also have in it

a element which demonstrates with clarity to the public that the selection is made on merit, and

divorced from politics. The process we have adopted involves a Judicial Appointments Commission

making recommendations to the Lord Chancellor, which he or she has limited power to reject. My

recent predecessors and I have appointed judges, scrupulously on merit, and without regard to party

politics. People however need to see that is the case - particularly when the role of the judge is more

often than in the past seen to be in areas of policy which are also occupied by the politician - for

example, the fight against terror, or sentencing. Because of this increasing overlap it is not just

critical that the appointment must be transparent in its reliance on merit. It must also ensure that the

judges represent the diversity of the communities they judge. Because without diversity, quality will

be lost. And so will confidence. It is not plausible, for example, to suggest so low a proportion of

women are fit to hold judicial office. That in appointing recently for the first time ever a woman to be

a member of the Judicial Committee of the House of Lords, it is clearly nonsense to think that the

particular person involved - eminent and outstanding judge though she certainly is - could possibly be

the first ever woman who could in our history been able to play such a role. The appointment system

we have adopted in England and Wales is right for us. Each country must make its own decision on

the right approach. Whatever system is adopted must demonstrate appointment solely on merit, and

reflect the diversity of their communities.

Second, clarity about the separation between courts and the other parts of the state. At the heart of

this point is the need for judicial independence. That point cannot be overstated. But it must also be

apparent which decisions are those of the courts, and which those of the executive or the legislature.

An example of this seemingly obvious point. In determining the measures to be taken against terror,

it is for the executive or the legislature to decide how the fight should be conducted. The role of the

courts is not to determine what individual measures to take. It is to decide whether the measures

others have decided on are lawful. The courts must always be clear they are not making either

political or intelligence decisions.

The recent decision of the UK Parliament to create a Supreme Court reflects the same point about

clarity. There is no longer a democratic constitution which can have the head of the final court of

appeal sitting in the cabinet. The court which will decide whether the executive's counter-terrorism

policy is lawful, was, until April 2006, chaired by a member of the body which has approved and

defended that policy. Of course he would not have sat in the individual case. But that would not be a

sensible answer to the conflict in any other area of life.

Nor do I think there is a sensible constitution which can have the final court of appeal constituted as a

committee of the upper legislative chamber. The quality of the court is second to none. But it is an

almost invisible court. It is difficult to visit as a member of the public. We have transferred the

jurisdiction of the Judicial Committee of the House of Lords (and indeed the Judicial Committee of the

Privy Council) to a new Supreme Court, which will be housed in the Middlesex Guildhall, in Parliament

Square, opposite the Houses of Parliament, and alongside both Westminster Abbey, and the

Treasury. A perfect encapsulation, in one place, of the legislature, the executive, and the judiciary -

and indeed, the church - which will be operational in October 2009. I believe it will become one of the

great common law courts in the world. We do not seek to emulate the Supreme Court of the United

States of America. Far from it. Instead we seek to make visible to the public and unambiguous to the

the world that our final court of appeal is separate from our legislature and performs a different

function.

Third, mutual understanding between judges and the other parts of the state about their different

roles, and that whilst they perform different roles they have shared values. This means being able to

disagree on the detail of a law or executive act without falling out. Judges understand that national

security is important. Politicians understand that a balance has to be struck, and each case needs to

be considered on its facts. These points need to be made explicit more often.

Fourth, acceptance from all parts of the state that restraint is almost invariably sensible. By restraint

I refer to courts, legislature and executive alike. I mean recognising that where we are dealing with

these discretionary issues where there is overlap between all three parts of the state good governance

is best served by each part of the state giving the others room to discharge their particular function.

And making it very clear they understand that different roles are being performed. So in the UK, the

courts will, as much as they can, construe legislation consistently with prevailing conceptions of

human rights protection. The legislature and the executive should recognise that reality, whether in

the laws they pass or the acts they take and seek, wherever possible, to ensure that whatever their

policy objective is can be obtained without being dependant on the courts taking a particular view of

the human rights effect. For the courts restraint involves recognising that in, for example, the context

of the measures taken to combat terrorism their the role is to determine the lawfulness of the acts of

the state, not what is the most effective way to combat terrorism.

Finally, there needs to be a recognition that fundamental human rights has an international dimension

both in the definition of those rights, and in their application. We should be careful to ensure there is

an understanding that whatever the wishes of the politicians or of the judges there are limits on what

can be done alone. Take, as an example, the recent issue much discussed in the UK, the case of the

Afghan hijackers. That they cannot be returned to Afghanistan is the result of the application of well-established case law in the European Court of Human Rights. The UK Government believes that

jurisprudence should develop and change. We are therefore pursuing opportunities to change the

conclusions in the European Court of Human Rights. That is plainly the right course.

In the UK, the day to day relationship between the judges and the executive, and the legislature, has

traditionally depended on the person of the Lord Chancellor. It still does, but in the context of a new

role for the Lord Chancellor. The Lord Chancellor has traditionally been the head of the judiciary, the

speaker of the House of Lords, and a Cabinet Minister whose main responsibilities are for the courts

and legal aid. Now, in the light of the reforms we have introduced, whilst he is a Cabinet Minister with

the same responsibilities, he is no longer a judge, no longer head of the judiciary, and no longer

speaker of the House of Lords.

In setting out what has changed in our constitutional arrangements, it is important to emphasise what

has not changed. Whilst the role of Lord Chancellor has changed, the office, rightly, has been

preserved. And he has retained the role he has had for centuries of being the bridge between the

judges, and the executive. He has explained, often through a fog of bewilderment, the judges to the

politicians, and the politicians to the judges. He has protected the judges from the pressures of the

politicians. And he has, from time to time, provided an external force to move the judges into new

places, not on individual cases but in their approach. All of that role will continue. And with the

authority which comes from being a successor to great men such as Thomas More, and Thomas

aBecket. The Constitutional Reform Act 2005 has provided for its continuance in Section 1 which

reads:

The rule of law

This Act does not adversely affect-

(a) the existing constitutional principle of the rule of law, or

(b) the Lord Chancellor's existing constitutional role in relation to that principle.

So a new role which changes very much what the Lord Chancellor does but retains the responsibility

for ensuring the protection of the judges, and the preservation of a good relationship between the

judges and the other parts of the state.

I want to turn now to two areas of the role of judges in a modern democracy, sentencing and human

rights, which seem to me to illustrate many of the pressure points in the relationship between the

public, the executive and the judiciary.

Firstly, sentencing. It has always been the case that sentencing has raised issues where the judge,

where he has a discretion, is operating on issues in respect of which the politician expresses views.

The senior judge's concerns I made mention of earlier about political parties becoming tough on crime

was a recognition that the judges were, if they were not careful, going to find themselves in a

different place from the two main political parties. It was implicit in what he was saying that this was

an unsafe and an unwise place for judges to be. Sentencing must hold out against populism.

Reporting of sentencing by the press often fails to report all of the salient facts, so there are often

wholly unfair attacks on over-lenient sentences which then appear wholly sensible when all the facts

are known. It is important that judges give proper publishable reasons for sentencing. And it also

important to emphasise that much of what the judge does in sentencing is pre-determined by

statute. And also what he is obliged to say when sentencing.

Where the judge does have discretion, it is an area where public confidence is critical. How judges

should approach that task was, in my view, best expressed by Lord Devlin. He rejected the idea of

trying to make a judge an expert penologist. He said instead the judge should be "like a juryman,

the spokesman for the ordinary citizen." He elaborated on this thought as follows:

"For myself, I believe that in the present state of democratic process in Britain and for so long as one

can see into the future, the judge should share the popular rather than the official outlook and should

judge as the ordinary man judges"

I endorse and adopt these wise words. The public are not one person. Views vary. What gives the

public confidence in their judges on sentencing is that their sentences reflect good sense, and

practicality. The sentence fits the crime. The judge sentences in a common sense way, not in

accordance with either a liberal or a hard line view of sentencing.

If there is to be change on sentencing, or the espousal of a particular radical approach, then it must

come from the politicians. In the UK, capital punishment had majority support when it was

abolished. Its abolition is accepted. Whilst there are those who would see it restored, there is no

political support for it of any substance. But that sort of leadership cannot be given by judges. That

sort of leadership must come from the politicians.

Above all, sentencing must carry public confidence. It is one of the critical determinants of how the

public view the efficacy of the criminal justice system. If the judges, in these discretionary areas, are

in a different place from the public then the judges face, unfairly, the danger of bearing the

opprobrium for failures of the criminal justice system. The judges should never allow themselves to

get to the position where the public thinks they are in favour of one sort of penalty as opposed to

another. As anyone involved in criminal justice knows, different cases require different disposals.

They should be in favour of the right punishment for the case. But they should be able to

demonstrate they understand the effect crimes have on communities. We need to consider ways in

which this can occur.

In the UK, for example, in north Liverpool, in England, we have opened courts in what was formerly a

school building. The Liverpool Criminal Justice Centre has all the criminal justice agencies housed in

the buildings. The judge meets community groups regularly. He is known to the community. He

understands their particular concerns. He has their respect and trust. His independence is not

compromised. He approaches the problems as a judge. But displaying as he does that he

understands the community he serves. That is the kind of sentencing we need. That is the kind of

justice we need.

Secondly, human rights. Human rights is another pressure point - where the position and role of the

judges takes on a new dimension, and become the subject of political debate. Across the world,

fundamental rights are applied by judges. The definition of those rights differs in detail. The precise

power of the judges in applying those rights varies. I am not seeking in any way to enter the debate

here in Australia about human rights incorporation. But in those countries which accept democratic

values the judges have the ability to adjudicate - at least on the executive acts of the state, and in

some cases on primary legislation - on whether these measures comply with basic rights.

In some countries their peoples enjoy fundamental freedoms only because of their judges' courage in

standing up to the state in ensuring the preservation of human rights. Those of us who live in

countries where the rule of law and the independence of the judiciary is an accepted, and respected,

part of our constitution should never forget the constant struggle going on in countries throughout the

world to establish and sustain those principles, against a hostile executive. And the critical role played

by the judges to achieve those principles. Whilst for some countries the human rights issues decided

by the courts are on the margins, in others they are right at the heart of the way the society is

ordered. And it is not just a hostile executive. In many countries human rights and the rule of law

has been preserved because of the willingness of judges not to be cowed by those who would seek to

intimidate the state through terrorism, often directed against the judges. As Aharon Barak, who has

just retired after 26 years on the Supreme Court in Israel, says in his new book, Judge In A

Democracy, criticism of judges

"frequently descends to the level of personal attacks and threats of violence"

and he notes wryly that "it is hard to be a judge", especially when society is under attack from people

who want to blow it, and themselves, up for ideological reasons. To cow the judges is to undermine a

vital part of our state.

In my own country there is a very modest memorial, in the judges' corridor in the Royal Courts of

Justice in Belfast, in Northern Ireland, to four judges who were murdered by the IRA who sought to

intimidate the judiciary. They did not succeed, despite a sustained thirty year terrorist campaign to

destroy the apparatus of the state. A vital part of the ability of those judges on who freedom

depends, to stand up to the state or the terrorists is having the support of judges right across the

world who subscribe to the same basic principles, and who understand the pivotal importance to

freedom of the rule of law, and, its necessary twin, an independent judiciary.

Where basic rights and the security of the population are under attack, as they are when terrorists

seek to prevail by intimidation rather than by democracy, then the state is entitled and obliged to

respond. As Kofi Annan said in Madrid, one year after the Atocha station bombings in which 192

innocent victims of terrorism died,

"Human rights law makes ample provision for strong counter-terrorism action, even in the most

exceptional circumstances."

We have found ourselves under attack by terrorists in ways we would have found unimaginable only

a few years ago. Laws do have to be changed to deal with this new and sustained threat. But the

response to terrorism must be conducted in accordance with fundamental human rights principles or

we cede to the terrorist. Those principles allow for a balance to be struck between the rights of the

individual, and the rights of the community as a whole. We must recognise that national security is

not a wand which sweeps away human rights, and human rights is not a barrier which prevents a

state from protecting itself against those who would destroy it.

Where there is the threat of terrorist attack, the particular measures which are permissible may

change. The measures to be taken to attack terrorism must be determined by the executive, and the

legislature. It is not the role of the judiciary to decide what these measures should be. Their role is

to determine whether these measures are in accordance with the law. The rule of law must prevail

just as much in times of terror, as it does in times of peace. Every battle fought by a country that

abides by the rule of law, must be fought in accordance with rules and laws. In his dissenting

judgement in Liversedge v Anderson, written in 1941 - before the USA had entered the second world

war, when we were at risk of being conquered - the words of Lord Atkin, catch the principle better

than any other:

"In England amidst the clash of arms the laws are not silent. They may be changed. But they speak

the same language in war as in peace. It has always been one of the pillars of freedom, one of the

principles of liberty for which we are now fighting, that the judges…stand between the subject and any

encroachment on his liberty by the executive, alert to see any coercive action is justified by the law."

The rule of law, when measured against a society that accepts democratic values, does mean

something more than ensuring compliance with process requirements. It means measuring, where

there is a choice, whether the basic requirements of human rights have been satisfied. That means

there are certain steps which are unacceptable. To quote again Chief Justice Barak, who famously

said "that means sometimes democracy must fight with one hand tied behind its back." He went on:

"Nonetheless," he said, "it has the upper hand."

We have the upper hand because our system is morally the strongest. And because it brings

freedom, security and prosperity for our peoples. I emphasise security. The certainty of rules, and

the refusal of a society to be intimidated by force into abandoning those rules best brings security.

Where there are clearly worked limits of executive and legislative intervention, sufficiently flexible to

deal with the ever-changing face of terrorism, but well-defined in their basic thrust - the right to life,

liberty, and a private life; the right to a fair trial, and not to be tortured - then the state can take, if

necessary, as tough a line as the situation demands consistent with well considered limits.

You can be much tougher up against the limits if you know where these limits are, and there is

independent verification of compliance. In some cases the lawfulness of acts undertaken by other

branches of the state will either be unlawful by any standard, or whether they are unlawful will be

determined by the application of clear and well-defined legal principles. For an example of the first,

any use of torture by a state is contrary to fundamental human rights law. For an example of the

second, whether the control orders imposed by my government in individual cases constitute a

deprivation of liberty involves an application of well-established principles as to what constitutes a

deprivation of liberty. But there will also be cases where the courts do have a degree of discretion as

to whether they regard the steps taken by the executive, or the legislature as acceptable.

I use the phrase "discretion" in a different sense to that which applies to the sentencing issues.

There is a wide band of answers to a sentencing question which would be regarded as correct. And it

is the courts who are exercising the primary judgement on what the sentence should be. In applying

fundamental human rights law the courts are judging the policy or operational choices of those who

have been charged with the primary duty of securing the safety of the people. The police, the armed

forces, the intelligence and security forces, the elected members of the executive, and the

legislature. In 99 per cent of the cases in which human rights points have been raised it is perfectly

clear what the answer is. But there is no doubt that the application of human rights law gives judges

choices. Not in very many cases. But in some. And it is that discretion to which I am referring.

What is the correct role a court should take when dealing with these issues which are right at the

heart of the political debate? These are decisions which the legislature has decided should be resolved

by the courts. Not how to fight terrorism. But whether the steps taken comply with fundamental

human rights. These issues will very frequently involve cases where public opinion will be, by a

significant majority, in favour of the measures that are in question.

If there is a "policy" or "operational" choice to be made on an issue of such central importance why

should it not be made by the politicians or the security services, rather than the judges? Where is the

legitimacy for courts to challenge and indeed strike down the acts of the executive, and in some

countries primary legislation where it is plain those acts would have majority support amongst the

electorate?

We cannot give effect to our democratic values without there being independent judges who hold the

ring between the fight against terrorism, and the constraints of the law. As long as we hold to those

democratic values then the role of the court is to state clearly the legal limits. And until the state

unequivocally decides, democratically, to abandon the commitment to the three principles of

democracy, the rule of law, and the individual's right to personal dignity then it is the court's role to

uphold these values. That will involve discretionary judgements, which will, from time to time, be at

odds with public opinion. But there is no other way to preserve the limits. The judgements which the

courts exercise have to be sensitive to the needs of the state. They need to be able to explain why

the balance is struck where it is. But in striking this balance, they reflect the values our society is

based on. They are the values of the society in which we all live. They must therefore command the

respect of the public. If the public lose confidence in where the balance is struck, then the system is

undermined. To say a decision is unpopular is not the same as saying it is one in which the public

have no confidence. But the decision must be one which can be explained in a context which makes

sense. That context is a forensic examination of the three issues of breach, justification, and

proportionality.

It is critical to repeat that the courts are not conducting the fight against terrorism. Nor are they

deciding the measures to be used. The level of threat, and the extent to which exceptional measures

are required, are for the executive, or the legislature. The questions the courts in the UK ask are:

first, do these measures infringe any individual's fundamental human rights; second if they do, is

there a justification for the infringement; and third, is the infringement the minimum necessary to

protect our democracy? For some steps there can never be justification - for example, torture. For

others, there can - for example, executive detention. But without some means of establishing

whether basic human rights have been infringed either because there was no justification, or because

the infringement went further than was necessary then the ability to give effect to democratic values

is lost.

"Abstract principles," CJ Brennan said, "announcing the applicability of civil liberties during time of

war or crises are ineffectual when a war or other crisis comes along unless the principles are fleshed

out by a detailed jurisprudence explaining how these civil liberties will be particularized through

national security concerns." How have we achieved this in the UK? Our constitution is based on the

principle of Parliamentary sovereignty. Parliament is able, by primary legislation, to make or unmake

any law, with the sole exception of those which offend our EU obligations. Consistent with our

commitment to parliamentary sovereignty, the Human Rights Act 1998 provided that any act short of

primary legislation can be struck down by the courts as offending human rights. But in relation to

primary legislation the courts can only make a declaration of incompatibility with those rights, and the

legislature can use a fast-track procedure to correct the incompatibility. On every occasion that the

courts have made declarations of incompatibility the government has either appealed and won, or

where the appeal process has been concluded unsuccessfully, or not used, they have corrected the

incompatibility by legislation. This approach was the brainchild of my immediate predecessor as Lord

Chancellor, Lord Irvine of Lairg. It reflects the constitution of the UK. It ensures Parliamentary

sovereignty, in the sense the judges cannot overrule primary legislation, but it provides an

authoritative means for the legislature to be told it has infringed fundamental human rights. In

constitutional terms there is no issue that the courts can strike down measures short of primary

legislation. As Lord Denning memorably said in the Gouriet case almost thirty years ago: "Be you

never so high the law is above you."

It is a part of the acceptance of the rule of law that the courts will be able to exercise jurisdiction over

the executive. Otherwise the conduct of the executive is not defined and restrained by law. It is

because of that principle, that the USA ,deliberately seeking to put the detainees beyond the reach of

the law in Guantanamo Bay, is so shocking an affront to the principles of democracy. That we

disagree on this issue does not detract from the fact that the USA is a close and staunch ally of the

UK. Without independent judicial control, we cannot give effect to the essential values of our society.

To give effect to our democratic values needs the participation of executive, legislature, and judiciary

together. How well they do it, as in every endeavour, depends on the quality of the individual

decisions each branch of the state takes. The ability to give effect to these values is not just the

morally correct position to take, though I believe it is most certainly that. It is also a vital part of

providing security for our peoples. The rule of law and the protection of human rights provide the

setting in which innovation, and economic prosperity occur. As we see countries applying to join the

EU, they do so in the full knowledge that the economic benefits come only with subscription to the

democratic and human rights values of the EU. The identification of these under-pinning values is

vital in the context of the fight against terrorism. For us to succeed in a battle which seeks to

undermine our very way of life we must win, not just by the strength and effectiveness of the coercive

and security apparatus of the state, but also because of the superiority of the values of our society

over the values of those who attack us. Without these values what we are fighting for can get lost in

the way we fight.

I want now in conclusion to try to draw together the strands of this argument on various aspects of

the role of judges in a modern society. The judge, today, has to provide authoritative answers to

issues which, yesterday, were much more the province of the politician. The greater definition of the

democratic values which underline our society means this trend is inevitable - because the acceptance

of the need for the protection of basic human rights inevitably depends on judicial protection for our

citizens.

Whereas, for example, the UK legislative response to the terrorist outrages by the IRA of the 1970s

was exclusively a matter for the UK Parliament, the response to the terrorist outrages of 2001 and

after is a matter to be judged by the UK Parliament and the UK judges. That dual responsibility in

respect of what previously had been, solely, a legislative responsibility is not intended to bring the

judges into politics. Instead, the judge is intended to provide a judicial answer to what is essentially a

policy question. Very often the law, through previous cases, in the local jurisdiction and beyond will

have provided an authoritative answer to that question. Sometimes the judges will have to make the

law themselves. And the judges are also finding areas, such as sentencing, which they had been left

to get on with in the past, through legislation and comment, increasingly becoming colonised by the

politicians.

The good working of our system requires we recognise that the role of the judge is being subtly

changed, without there being any desire to effect any change in the constitutional position of our

judges. We want them to undertake in a non-political way the resolution of issues which have either

in the past have been regarded as political or which are becoming more political. This is perfectly

possible to achieve. Issues such as sentencing, or striking the balance between human rights and

public protection, can be addressed as issues of legal judgement rather than political judgement.

But to ensure confidence in the system a number of points need to be addressed.

First, it is important to ensure that the system of appointment of judges gives the public confidence

that those appointed are appointed solely on merit, and insofar as lawyers can be, the judges are

looked at as a group, representative of the society they judge. If we are seeking to transfer

responsibilities from the political to the legal sphere there must be complete confidence that the

issues are genuinely being decided on a legal basis.

Second, the independence of the judges must be demonstrated and protected.

Third, the legislature and the executive in the laws they pass and the steps they take must recognise

that if there is a real transfer of some of the decision making responsibility to the judges they must

define the objectives of their acts in such a way that the judges are not being pressured in any way to

reach particular decisions or be blamed for the laws failing.

Fourth, all three parts of the state need to be clear that the judges are deciding the legality of the acts

taken to fight terrorism, not how to fight terrorism.

Fifth, each part of the state needs a clear understanding of the interdependency of each of their

roles. The legislature cannot pass laws which they suspect the courts will strike down or construe in a

way which does not deliver their intent. If they want to achieve their intent and they believe the

courts may not deliver it, they must take the responsibility themselves. The courts equally must

recognise that need to recognise that they must carefully define what their role is.

Finally, an indefinable wisdom is required from judges as to where to pitch their decision - because

however the point is expressed, judges, if they are making these decisions, must carry public

confidence. That wisdom requires the avoidance of populism, and the retention of public confidence

where fine judgements are required. They must seek to give effect not to their personal views but to

the values inherent in their legal system. Those values must reflect the society that system serves.

Frequently their decisions will not be popular. But if the decision combines the characteristics of good

practical sense and moral strength when measured against the problem posed it is likely to be right.

Our societies can ask for no more from their judges, but, to make our system work, our societies must

expect no less.