26 Jul 2009

Excerpts from a speech

The following excerpts are taken from a speech given by the Lord Chief Justice of England and Wales at the 16th Commonwealth Law Conference, Hong Kong, on 9th April 2009.

First, because when we speak of judicial independence, and then speak of the rule of law, we tend to make it sound as if we have two separate concepts, when they are as closely intertwined as a mutually dependent and loving couple after many years of marriage, where one simply cannot survive without the other. And second, to remind us that we should never take either judicial dependence or the rule of law for granted.

The places where things have gone wrong include countries which believed that they were mature democracies, where these things did not and could not happen, but they did.  But they did.

…There was, of course, no physical intimidation, no threat to security of judicial tenure, none of the extremes of tyranny. But it is the first steps which have to be watched. The first incursion by the executive into impropriety. The first compromise by the judiciary with principle. We are all familiar with the employee who steals from his employer. The most difficult time is the first time the hand goes into the till. After that, each successive time is less difficult. The problem with the phrase “eternal vigilance” is that it appears to focus on the long term. But the focus is the immediate, today,  every day. The insidious dangers are no less threatening than the obvious ones, and for the judiciary to acquiesce in the first small, even tiny, steps, may ultimately be terminal.

…In a democratic country all power, however exercised in the community, must be founded on the rule of law. Therefore each and every exercise of political power must be accountable not only to the electorate at the ballot box, when elections take place, but also and at all times to the rule of law. Independent professions protect it.  Independent press and media protect it.

Ultimately, however, it is the judges who are guardians of the rule of law. That is their prime responsibility. They have a particular responsibility to protect the constitutional rights of each citizen, as well as the integrity of the constitution by which those rights exist.

…Without independence, and without respect for judicial independence these desirable, indeed elementary facets of a civilised community, are threatened. At the same time, no individual, or group of individuals, nor even any judge, however high his office, has any dispensing power – that is, the power to set aside or disregard the law.

The absence of any dispensing power was, and remains, fundamental to the rule of law. Judges cannot dispense with it.  Parliament itself cannot dispense with it. None of our democratic institutions may do so. They are, of course, entitled to change it.

The word,  some of you will already have seen, but which you will all increasingly see, is “constitutionality”. It is a word with a great future. In other words, if the executive wished the legislature to pass such an outrageous Act, it should do so in language that was so plain, that the public conscience would be revolted,  and the legislation fail, or if passed, the price would be paid at the next election.

It is therefore fundamental that there are no circumstances in which the executive may even appear to tell judges how cases should be decided. Even when the public agrees with the executive at the particular time in relation to the particular point, future public confidence that justice will be done impartially and independently will be eroded. In the end, I firmly believe that the public, even if dissatisfied with an individual decision in an individual case, wants its judiciary to be independent of the executive.

What I am driving at is that the judiciary has an institutional responsibility to ensure that inefficiencies in the legal system do not, as Lord Denning once remarked, “turn justice sour”. In 1215 when King John signed the great Magna Carta it was agreed, “To no-one will we deny or delay right or justice”.  Over the centuries, our greatest writers have identified the consequences of inefficiency. In Hamlet, Shakespeare listed it among the “whips and scorns of time”. At the very start of Bleak House, Charles Dickens identified its ability to exhaust finances, patience, courage and hope. Can you imagine anything worse than exhaustion of hope? And if hope is exhausted through the process of litigation, or a long-delayed criminal trial, how can we, as judges, disclaim any responsibility for it?