Judging the judges

Recently I was asked to step outside my comfort zone of banging on about corporate law to speak at a panel debate about the rising political and constitutional role of the judiciary (I suggested they get someone better, but they asked twice). It was an interesting experience, not least because of the recent launch of the Supreme Court and the prospect of a Conservative Government overhauling constitutional statutes. Anyway, for what it's worth, below is the introductory speech I wrote for the debate, with a couple of tweaks for the written form.

I'm sceptical about the idea that judges are lording it over politicians and the country, but it is undeniable that the judiciary has assumed a much more political role in England and Wales over the last 30 years.

Through a series of (usually haphazard) constitutional reforms, they have gained more power over Parliament, notably with the UK's entry into the Common Market and the creation of the Human Rights Act a decade ago.

Since the 1960s judges have become more 'activist' or 'progressive' in the wake of figures like Lord Denning, a trend also underlined by the dramatic expansion in the use of judicial review and a greater propensity to speak out on issues of the day.

But this shift towards judicial intervention in political and social matters has come from a low base. We've only got near to the checks and balances seen in many other developed countries. And judges have tended to be rather better at protecting their 'patch' - meaning the rule of law - than the rights of individuals or guarding free speech.

The creation of the Supreme Court, which was designed amid a chaotic cabinet reshuffle in 2003, could be a further step towards an active judiciary, though probably a minor one.

Though I don't see much danger with the current arrangements, there are risks of walking down this path.

For one, the myth of judicial 'neutrality' continues. Judges can be - and to a reasonable extent are - balanced, but this isn't the same thing as being neutral or impartial. Balanced denotes working within a professional straightjacket with checks and balances; neutrality suggests something divine and unachievable. Unfortunately, judges have a habit of speaking as if they can deliver something which they can't. And in this respect, some would argue they have pushed their luck with mounting extra-judicial activities on Royal Commissions, tribunals and public enquiries, in some cases acting well outside of their core skills and experience.

Another issue is how judges themselves are to be exposed to more transparency, which will be inevitable and desirable if they play a greater public role. Currently the majority of media debate about judges is polarised between tabloid bashing on one hand and strong support on the other. We're often told our judges are either world-class or useless, but against what yardstick? It doesn't greatly aid the debate or the public's understanding.

And there is also a dangerous idea at the heart of this drive to give more power to the courts that judges are 'better' than politicians. By and large in this country we have the politicians we deserve; though we run away from it, politicians are a reflection of us and the views of the people. So the idea that judges can deliver us from politics - that we can outsource elements of politics to judges - is indeed dangerous.

The final thing to remember about judges is that they are products of a profession, and all professions have their prejudices and limitations. And in many ways the legal profession has become more introverted over the 50 years, retreating from public life even as it has grown in size and riches. The fundamental issue in future could be how well qualified judges will be to intervene in public life from which they are so divorced. But I'm sceptical - professions often have quite small horizons.

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