The first Catholic to become Lord Chief Justice of England was Charles Russell, in 1894, a man whose benignly Victorian image looked down on me almost every day of my teenage life. He was by a long way my Dublin secondary school’s most famous old boy from the days before Independence and his portrait hung in the school hall. I ate and drank with Russell for five years, often wondering what he was for and how on earth he had got to where he had from our common starting point in a Dublin suburb.
Russell’s reputation was made by his brilliant defence of the Irish Nationalist MP Charles Stewart Parnell before the Special Commission set up after publication in the Times of what we now know as the Pigott forgeries. (These were documents which quite wrongly linked Parnell to the murder in 1882 of two leading members of the British Administration in Ireland.) The Commission was a ruse devised to destroy Parnell’s reputation, and one into which I am sorry to say three judges allowed themselves to be cajoled. The Special Commission Act 1888 explicitly named the three who were assigned to the task: Sir James Hannen, President of the Probate, Divorce and Admiralty Division of the Court of Appeal; and Sir John Day and Sir Archibald Levin Smith, both from the High Court: ‘Unionists to a man,’ as Roy Jenkins describes them in his Life of Gladstone. But what were these judges thinking of, presiding over a tribunal to which none of the ordinary rules applied, set up for a manifestly political purpose – namely, to add a veneer of judicial legitimacy to a crude act of political power?
Of course this was not the last time that senior English judges were to be brought into extra-judicial contact with the Irish problem. (Regular press reports from Derry remind us of an ill-fated judicial investigation thirty years ago.) It seems at times that judges do not quite realise that their status and standing make them attractive fig-leaves behind which other persons, much less highly principled, can hide, fig-leaves which can then be cast off when no longer required. Like Hannen, Day and Levin Smith, Lords Parker and Widgery, for example, are now remembered as much for their reports on aspects of security practice in Northern Ireland as for anything they achieved as successive Lord Chief Justices. The memory is not a warm one.
This whole question of extra-curricular public service by judges – in public inquiries, commissions and so on – is one that has not been properly explored. Increasingly in recent years, judges have been asked to perform all manner of public duties way beyond the confines of the courtroom, sometimes suggesting new laws, sometimes enquiring into past tragedies, sometimes a combination of both. The costs and benefits of these activities from a public interest perspective have not been seriously addressed. It is in many ways reassuring to be able to call on the services of a senior and respected judge in this way. But is it wise to tie up senior judicial figures in inquiries that may take years to conclude and which are not guaranteed to produce any government response (or which produce only a partial government response) even when their reports emerge? Is it not the job of the Civil Service rather than the judiciary to produce policy options for ministers on proposed changes of the law, even where the catalyst for change is some catastrophe? Could public inquiries not be conducted by inspectors belonging to a pool of experts from which the right person could be drawn at the right time? Why prepare people for years for a particular task and then set them a whole series of quite different and unexpected challenges, for which it is possible that they are ill-equipped?
The arguments are finely balanced, with the value of getting a judicial imprimatur having to be weighed against the resource implications and the possible corrosive effect on respect for the senior judiciary which such inquiries might cumulatively entail. (The Americans are resolutely opposed to such extra-curricular judicial activity, though as we know their Supreme Court has come up with an ingenious new way of forfeiting public respect.)
Judges, it seems to me, should be particularly reluctant to accept any quasi-judicial function of an ongoing, statutory nature, particularly if it comes with the title of ‘commissioner’ (as with the Parnell Commission) or with the title of head of this or that ‘tribunal’ established by some new framework of law. This is especially so if such posts are not one-off calls to public duty but new positions requiring to be permanently filled on terms that are often effectively set by the executive for its own convenience.
That this is not a wholly theoretical question, or one of historical interest only, can be seen from the very recent enactment of the Regulation of Investigatory Powers Act 2000. This controversial Act provides for a whole series of powers aimed broadly at covert surveillance. The measure is awash with Orwellian functionaries – the Chief Surveillance Commissioner, the Assistant Surveillance Commissioners, the Intelligence Services Commissioner, the tribunal – all of whom share as their ostensible purpose the aim of protecting the public from abuse. But exactly how robust such oversight is, how clear the lines of authority, how real the level of review are matters of no little concern.
What makes this an issue of constitutional significance for the judges is the fact that the Act anticipates – indeed depends on – judges fulfilling these various roles. It will not be through the performance of the judicial function as we know it that their power will be exercised, however, but through procedures standing outside the legal process, with sharply truncated rules of engagement and with terms of appointment under the Act which are very different from those normally extended to judges on elevation to high office.
I can immediately see the advantage from the executive’s point of view of securing the benefits of the judge’s prestige, but where is the value in it from the judicial perspective? At the very least, before agreeing to take up such a post, the judge in question would be wise to insist that his or her status should not be deployed without the inconvenience to the government of the fair and open procedures which are indelibly associated with his office. To put it in a rather less refined way, the integrity of the English common law courts has historically been defined by their opposition to special courts such as those of the Star Chamber and the High Commission of the Stuart era. This is one reason the judges are held in high regard today.
But our contemporary judiciary are surely as ill-suited as their forbears were to participating in pseudo-courts set up with truncated judicial processes and designed in the main not to control but rather to legitimise the exercise of executive power. If this dirty work has to be done, there is no reason why the judges should regard themselves as duty bound to do it.
Now we read in the newspapers that not even the Regulation of Investigatory Powers Act has satisfied the appetite of the security services and the police – who are reported to be demanding access as of right to every phone call, e-mail and Internet connection made in Britain. Inevitably we are told that this is to assist in the so-called ‘war against paedophiles, drug traffickers and organised criminal gangs’. But reciting the mantra of evil ones is not enough to justify the powers desired. No doubt the planners of this legislation are entirely confident that whatever limited niche they allot the judiciary, the judges will be more than happy to squeeze dutifully into it. They should be made to think again.
I like to think that if he were suddenly transposed to the present, Lord Russell of Killowen, with his experience of the Parnell Commission and his 19th-century Irish background, would take a very clear and negative view of such quasi-judicial frolics into the secret state. During his judicial career he did in fact have something important to say about another kind of matter for which he thought the judges ill-suited. His views are to be found set out in the well-known decision of Kruse v. Johnson (1898), and it has a strong contemporary ring. The case concerned the validity of bylaws promulgated by a local council. For years Victorian judges had become inured to scrutinising such laws very closely, and to striking them down if they were judged deserving of such a fate. But here what was at issue was a bylaw made by one of the ‘public representative bodies’ that had lately emerged as a consequence of the democratisation of local government.
To Russell this democratic character made them very different from their forbears in the worlds of railway and canal regulation and the like. He considered that they ‘ought to be supported if possible’, or as he also put it, to be ‘“benevolently” interpreted’. In Kruse v. Johnson, he took the opportunity to express as full a theory of judicial restraint – and as resounding an answer to the question: what are judges not for? – as any that has subsequently appeared in more famed juristic circumstances:
A bylaw is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some judges may think ought to be there. Surely it is not too much to say that in matters which directly and mainly concern the people of the county, who have the right to choose those whom they think best fitted to represent them in their local government bodies, such representatives may be trusted to understand their own requirements better than judges.
Now this is a marvellous if implicit definition of where judges fit in the modern democratic process, as agents of the expression of the community’s political will rather than as its antagonists. It is likely that Russell would have been with the minority in the US Supreme Court case that handed the election to George Bush. But that life is not simple (which is what makes Kruse v. Johnson so interesting) is demonstrated by looking at what facts were set before Lord Russell and his colleagues. For the bylaw that the local people had enthusiastically enacted was draconian: a ban on all playing of music or singing within fifty yards of a dwelling house after having been asked once to stop. The point was not to return this part of England to a puritan dark age, but rather to facilitate the stopping of one particular source of music: the Salvation Army. The case was one of many from this era involving the Army, the most famous of which was Beatty v. Gillbanks (1882). In modern terms, the majority had used its power to curb the religious freedom of an unpopular minority. Was Lord Russell right or wrong to stand by, or should he have allowed his respect for the democratic process to have been (to use the well-worn modern phrase) ‘trumped’ by his determination to protect minority rights? This question is at the heart of what it means to be a judge at the start of the 21st century.
The judges themselves have been much clearer about what is needed to guarantee their effectiveness than what it is that they are supposed to be effective at. Thus in a memorandum from the judges of the Supreme Court of the Judicature, presented to the Prime Minister on 4 December 1931, they described themselves as having been ‘appointed to hold particular offices of dignity and exceptional importance’ and as occupying ‘a vital place in the Constitution of this country’, standing ‘equally between the Crown and the Executive and the Executive and the subject’. With the judges having a responsibility to ‘discharge the gravest and most responsible of duties’, the memorandum continued, it had ‘for over two centuries been considered essential that their security and independence should be maintained inviolate’.
Fifty-eight years later, in 1989, the senior judiciary queued up in the House of Lords to make the same basic point about what the then Master of the Rolls Lord Donaldson described as the vital importance not only of ‘the independence of the judiciary’ but of ‘the independence of the entire judicial process’. Yes, but what was all this independence for? What are these ‘gravest and most responsible of duties’?
It is tempting to point out that in 1931 these ringing endorsements of judicial independence were made in the context of a rather squalid dispute about how much the judges were being paid (not enough, apparently), and that in 1989 the huge importance of the idea of judicial independence was suddenly stressed in order to see off a government effort to end the Bar’s monopoly of court advocacy. Can we deduce from these historical circumstances that ‘judicial independence’ is a mere trick of the light, a rhetorical flourish designed to put the enemy off their guard, and to advance a sectional interest through a spurious invocation of the public good? In a properly designed system of government, there is no reason why institutional selfishness should not be entirely compatible with, indeed necessary to, the public good.
The Americans call such a system one of checks and balances or of the separation of powers, though whether either phrase can survive the 2000 Presidential election remains to be seen. But neither of these ideas can be what British judges regard their independence as designed to serve. After all, no one seems to have thought it odd or even ironic that the senior judges should have been able to mount their emotional defence of judicial independence from within the legislature – i.e. in the course of two debates in the Upper House. And equally clearly, the British Constitution has historically permitted – and still permits as far as the Lord Chancellor is concerned – the participation in court proceedings of members of the executive branch.
If independence were what judges were for, and if that independence were defined in opposition to other branches of government (as, to be meaningful, it would have to be), then it would be quite clear that the judges were not what it was their primary function to be – namely, independent. But independence is not a purpose or a function of anything: it is a condition which makes possible the discharge of a function – a means to an end, not an end in itself.
What then is that end? Here we finally come close to what judges are primarily for, which is to adjudicate fairly by applying the law to disputes between private parties and (when the need arises) disputes between individuals and the state – which, far from making less peculiar the fact that the senior judges sit in the legislature, makes it even more obviously wrong that any of them should be in the Lords at all.
What business do those who must apply the law in particular disputes have assisting in the formulation of the very rules they are later required dispassionately to apply? Are we so short of volunteers for Parliamentary service that the senior judges are bravely but reluctantly filling what would otherwise be an unfillable gap? I doubt it: the recent rush of applications to sit in the Upper House suggests that supply is not a problem. Are there things the judges can say in the Lords which are so valuable that they must be said as part of the legislative process itself rather than as an attempt to influence it from the outside – which is where every other profession and group in our society (aside from the Church of England) finds itself? Again I doubt it: the judges are not a weak group of marginalised persons requiring special treatment. Their participation in the Lords is a Victorian anachronism which surely need not survive the further reform of the Chamber that cannot be much longer delayed. (This is not to say that they should be given some grand new title such as Supreme Court by way of consolation; I am not at all sure that institutions in general benefit by such aggrandisement, and I would have thought this particularly true of the judiciary, the members of which are already inherently vulnerable to flattery from persuasive advocates. I would suggest that either the Judicial Committee of the Privy Council be further developed into a review court or the Appellate Committee of the Lords be reconstituted as a final court of appeal.)
The moment we identify the judicial role in our society as primarily adjudicative, the anachronisms in the Constitution will inevitably seem deeper. Certainly they extend much further than the presence of the senior judges in the legislature. If we think about legislation in functional rather than institutional terms, it becomes quite obvious – so apparent that we don’t really notice its implications most of the time – that the judges have been far more involved in legislating than the occasional speech in the House of Lords would suggest.
I am thinking about the way in which the judges oversee the ‘development’ of the common law. In theory, such law is not made, merely recognised. But as a great teacher of mine, the Yale professor and now US judge Guido Calabresi, once asked, do we not have enough duplicity in our lives without also lying when we don’t have to, in our spare time, as Monty Python might have put it? Who could read last summer’s decision on barristers’ immunity and on the liability in negligence of local education authorities – decisions that greatly extended the vulnerability of lawyers and public authorities to litigation – without seeing that a very direct kind of law-making is going on, with general rules being made that reach well beyond the confines of the cases which throw them up and which will shape for years the conduct of those affected by them? But in none of these decisions has any Act of Parliament been at all relevant.
Clearly this is law-making. And this common law is also far from ‘ethically aimless’, as many have argued; I have far more respect for it than that. Its ideology is and has always been manifestly rooted in respect for property rights and for the need to ensure the enforceability of contracts. No one could read Anthony Lester and Geoffrey Bindman’s pathbreaking work on Race and Law (1972) – the early chapters of which cover the hostility of the common law to race discrimination law – and come to any other conclusion.
Not only do we lawyers often simply not see that the common law is legislative in effect: we also have difficulty in seeing that it is driven by a particular and highly political (in the broadest sense) view of the world. Indeed, those academic writers who have made the articulation of such an insight part of their project, writers such as John Griffith (The Politics of the Judiciary) and Patrick McAuslan (The Ideologies of Planning Law), have found themselves exposed on this account alone to partisan attack. Murray Hunt has perhaps explained it best, observing in a recent essay that ‘it is a defining characteristic of legal cultures that [their] participants often do not perceive the cultural specificity of their ideas about legal argument.’
In truth we have long known that despite their claim to be merely adjudicators, the judges have been routinely making rules for us to live by. This has not been as obvious as it should be in relation to the common law. It has been more publicly apparent in the context of statutory interpretation, the second way judges can affect the rules we are governed by – and which to its critics has sometimes looked like an attempt to tame the desires of Parliament in order to make them more compatible with the common law’s ideologically driven assumptions about the public interest.
The US election and the almost simultaneous implementation of the Human Rights Act have brought particular attention to the issue of the legitimacy of judicial decision-making, but it has clearly been around for a long time. So, too, has the debate about what kind of people should be judges, a question recently addressed to excellent effect by Sir Thomas Legg. Of course, one is intuitively in favour of a ‘representative’ judiciary or one which ‘reflects’ the sort of people – in terms of gender, race, ethnicity, social class and so on – that we find living on these islands. But Legg’s Street Lecture forces us to reflect on why we feel like this. Why do we assume that judges should be ‘representative’ in these sorts of way? The answer is in my view indelibly linked to function, to the question of what judges are for.
Let us envisage an abstract spectrum of judicial types. On the extreme left (no political point intended) is the strict constructionist, whose only job is to work out the meaning of the words deployed by the legislature and then give effect to them. There is no common law to interpret, only statutes together with a civil and (perhaps) a criminal code. In the centre is the judge who engages in statutory interpretation in a rather more creative way and who has full autonomy in a particular legislative field, described as the common law. Finally, on the extreme right (again no subliminal message intended), is the judge as overt lawmaker, whose origins as an adjudicator have long been transcended by his or her overriding responsibility both to make general rules for the public good and to oversee the making of these rules.
Now it will be obvious that as we move along that spectrum, from left to right, the pressure for a more accountable judiciary is bound to grow. Where the judicial function is purely technical all we want are experts who can do the community’s bidding most effectively: lawyers are probably the right people to turn to, though linguistic philosophers (if there were enough of them) would be better. It is when we see the judge not as a virtuoso but as the maker of rules that we become uneasy about his or her lack of a democratic base. And when we reach the judge on the far right of our spectrum, we end up – as in the United States – trying desperately to get our people on the bench, voting for a Presidential candidate who will put our people onto the Supreme Court, trying to block in Congress those proposed justices who do not fit our political ideology and, if all that fails, marching past the judge’s office shouting our views in the hope that they will be heard and maybe acted on.
Even before Florida, it was an odd way to run a democracy. I may be irretrievably nostalgic or a true revolutionary (I am not sure which – perhaps both), but I have a strong hankering for a very limited judicial function, somewhere well to the left of the spectrum I have described: in other words, an arrangement in which, broadly speaking, the rules are made by elected representatives, interpreted by the courts and enforced by the executive arm.
This is not, however, where the United Kingdom’s judiciary are. Of course, they have never been entirely on the left of my spectrum: the existence of the common law has seen to that. Nor, however, have they been too far to the right. Their ‘legislative’ function has been well camouflaged and in the main (with one or two exceptions) timidly exercised.
What no one could have expected was that the legislative branch itself would invite the judiciary to exercise legislative power of a far more general and pervasive nature than has hitherto been countenanced. This is the effect of the Human Rights Act, ‘the most significant formal redistribution of political power in this country since 1911, and perhaps since 1688’, as my colleague K.D. Ewing has described it.
This is the real turn-up for the books and the stunning answer to those of us who have long argued for a limited judicial function in order to allow our legislature to get on with the business of making general rules. What are we to say when that same legislature decides of its own volition to transfer a huge and open-ended portion of its function to the judiciary? I know that the Human Rights Act could in theory be repealed whereas judges cannot strike down an Act of Parliament they don’t like, but the fact remains that the Act positively mandates the judiciary to transform its function, to move much further along the spectrum I have just outlined and to engage in the formulation of rules in a far more robust fashion. Section 3 alone would be enough evidence for the general case: it gives the courts the power to roam around all legislation – past and future included – transforming it where possible in order to ensure compatibility with the Human Rights Convention. If such a power were given to any other branch or sub-branch of the state, and certainly if it were given to the executive, the legal community would be up in arms, conferences would be held and papers published, deploring this unprecedented ‘Henry VIII clause’, as the cognoscenti would call it. But because it’s to do with the judges, we seem to assume it must be all right.
There are aspects of the quasi-legal revolution being ushered in by the Human Rights Act that make the public interest-minded lawyer salivate. The extension of the Act to private law through section 6(3)(a) may over time prove to be the most important legislative intervention in the ethical base of the common law since the latter’s emergence in medieval times. The duty of all public authorities to respect Convention rights has already begun to frame the public discourse in beneficial ways: local newspapers, radio programmes and many members of the community are thinking in terms of dignity and rights more than would have been the case without the Act. If the measure’s clear commitment to three simple principles – those of legality, respect for civil liberties and human dignity – can be kept prominently at centre stage then the Act may well do some good in cultural as well as legal terms.
It’s a big ‘if’, however, and all judgments made so early in its life must inevitably be contingent. The most important civil liberty of them all is the right to vote, and it remains to be seen how much effect the judges will give to the respect for parliamentary democracy that permeates the Act, as they sit in their various corners gazing sulkily across at the noisy human rights subsections which have been getting all the attention and excited praise from the legal community. I have a great deal of sympathy for the judges on this point. They have been given an impossible task by Parliament, having been told, in effect: ‘please override us where human rights are at issue – but in no circumstances do so where we really do not want you to.’ Like everyone else, Parliament is in favour of human rights in principle, but very much against many of their concrete manifestations.
Pleasing both Parliament and the human rights community – as the Act requires the judges simultaneously to do – will be a difficult trick to pull off. Apparently easier for the judges, but I think ultimately more challenging, will be to guide the measure away from the kind of constipated legalism with which the adversarial system invariably seeks both to swamp and to destroy all novel laws. Here the signs are not good. There have been some decisions in Scotland which I am bound to say have adopted a highly legalistic, and at the same time very narrow, approach to the Act. Many of the huge number of books on human rights law now squeezing out all other subjects from the legal bookshops are very good, but some at least betray a depressing commitment to the old nit-picker’s way of ‘getting on top of a new statute’.
The Human Rights Act is different and if it is to have any chance of success has to be seen to be different. It requires judges and legal practitioners to think. It requires arguments to be framed in terms of principle – it tries to close the gap between our ethical and our professional selves. So the judges are in for an exciting time. As Lord Hope famously put it in the first prominent case involving the Human Rights Act, the ‘entire legal system’ is about to be subjected ‘to a fundamental process of review and, where necessary, reform by the judiciary’. But as the Home Secretary might have responded, with such rights come responsibilities. Steering the Act away from judicial supremacism and in a direction which respects the public interest as expressed through our representative institutions is one such challenge. Another is to protect it from arid collateral litigation.
Further challenges flow directly from earlier points of tension in the role of the judges, tensions which we must expect to be hugely exacerbated as a result of the Act. The first relates to the new emphasis on judicial independence and impartiality which is to be found in Article 6(1) of the Convention. We have had excitements within this jurisdiction already, with the Hoffman affair during the Pinochet litigation. More important, the presence not just of the Lord Chancellor but of all the law lords in the legislative chamber will no doubt be questioned sooner rather than later. And as my colleague Paul Matthews has pointed out in relation to the McGonnell case from Guernsey (McGonnell v. United Kingdom), which has focused attention on the role of the Lord Chancellor as a member of the legislature and the executive as well as the judiciary, a judge does not have to be an active participant in a legislative process in order to be deemed ‘a judicial imbecile, incapable of reaching an impartial and independent decision’.
On the same principle, I feel judges will have to be careful about what they say in print outside the courtroom. They contribute very freely these days to the law reviews but the Act may make judicial interventions in the academic literature which are more than mere summaries of past cases difficult to justify. Supposing the judge before me on an issue of the application of section 6(3)(a) of the Human Rights Act – raising the vital question of the applicability of the Act to law actions involving private parties – has already made clear in a law review article his or her view that the Act does not apply to private parties. What can I do other than ask him or her not to hear the case?
The problem here is a lack of fit between appearance – which suggests that what is going on in the courtroom is a battle between two adversaries on a narrow point of law – and the reality, which is that large issues of policy are in fact being formulated as legal rules of general application. This lack of fit has in the past been the subject of a lively scholarly and public debate, and we need now to return to the literature and work out the best way of getting the full facts before a court so that when it makes a ruling under the Human Rights Act, it does so explicitly acknowledging its legislative character and with a clear understanding of its widespread implications.
I believe that the Court of Appeal, the Appellate Committee and the Judicial Committee should have appointed to them a ‘public interest officer’, along with a small team of officials, whose job it would be to prepare reports on the effects of possible rulings not just on the law but on society as a whole. The appointment of such an officer would square with Parliament’s insistence that the effectiveness and continuing operation of legislation not be irreparably damaged by judicial interpretation. But how can judges know about such operational matters? How can the lawyers for the various litigants know? How can the court be sure that an amicus brief (submitted by a non-party to help the court) is authoritative? How can it choose between amicus briefs if there is a conflict? The advantage of a ‘public interest statement’ filed by a court officer would be that it would take such issues out of the confines of the adversarial process, and also – an additional advantage – open up the process to persons other than lawyers. Some might see an analogy here with the role of the Advocate General before the European Court of Justice.
I remarked earlier on the growing pressure for the judiciary to be ‘representative’. Since we have a judicial branch engaged in quasi-legislative work, is not the case for a representative judiciary unanswerable? And if it is, why have we chosen to locate such power away from Parliament in the first place? Are those who argued so passionately for this increase in judicial power now having second thoughts, and seeking to transform the judiciary into a pale reflection of the assembly from which they have taken away so much power? I say ‘pale’ because no one is yet – so far as I know – arguing for an elected judiciary. But if not elected, what does a ‘representative’ judiciary mean? Of course, as Phil Thomas’s Discriminating Lawyers has recently shown us, there are large questions about equality and race to be addressed in the legal profession. But I remain to be convinced that it is the job of our liberal institutions to paper over the inequality that we have as a society decided to tolerate.
More important than judicial representativeness is judicial accountability. In the new era of judicial legislation, the judges are, I believe, going to have to be ready to be treated far more politically than in the past. The main opposition party in Ireland has recently published proposals under which the judges would be overseen by a Judicial Board and individual judges subjected to penalties where the Board thought they had got things wrong. I expect the pressure for appointment only after a process of selection involving Parliament cannot long be resisted in the UK, and, more to the point, should not be resisted. There will soon be, in the Select Committee on Human Rights, an ideal forum for such ‘confirmation hearings’ to be heard. Everybody recoils from this because of the US experience. But there are not nearly so many controversial candidacies in the US as is widely believed, and the main ones we know about – those involving Robert Bork and Clarence Thomas – were rightly controversial. US Federal judges have in the main drawn a degree of comfort from their confirmation hearings, feeling that it has given them a measure of democratic legitimacy in relation to their subsequent judicial work. Indeed, American opinion may now be inclining to the view that there has been too little rather than too much pre-appointment accountability, at least as far as the Supreme Court is concerned.
I also think senior UK judges will have to be prepared to meet with Parliament – perhaps with this new Human Rights Committee – to explain in general terms what is happening in the courts under the Human Rights Act and to defend, not specific decisions but general policy developments, to that body. The Committee might legitimately want to investigate, for example, what has happened to Parliament’s criminal statutes under the Act. Or it might want to assess the cost of particular decisions, or the rationale behind a declaration of incompatibility. Far from being antagonistic towards such developments, the judges should welcome them, as part of that dialogue with the other branches of government for which many have long argued.
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