Alexander Hamilton described the judiciary as the "least dangerous" branch of government because it possessed neither the power of the purse nor the power of the sword. The independence of the judiciary is not just one of the components of the rule of law; it is an absolute prerequisite for it. But this independence is under threat, both from direct attempts by the Government to fetter the judiciary, and from developments which are drawing judges into the political arena.
Judicial autonomy is threatened when governments seek to limit the ability of judges to do justice in individual cases. Legislation currently before Parliament would enable Ministers to remove coroners from inquests if they deem it ‘in the public interest' and prevent magistrates from giving suspended prison sentences for summary-only offences. Perhaps most worryingly, Jack Straw is proposing a Sentencing Commission, which would take into account the impact on the prison population when setting sentencing guidelines. This is simply wrong. It is the job of the Government to ensure we have the prison places we need to accommodate all those who judges feel need to be incarcerated, not to restrict sentences because they have failed to provide adequate prison capacity.
The judiciary are not only the protectors of the rule of law: they are themselves subject to the principle. The principle that Parliament makes the law and the judiciary uphold and enforce it - even against the Government when it is the executive which is breaking the law - is not only sound, it is democratically essential. That's why it is of concern that some judges have started to question the sovereignty of Parliament, talking instead of a "dual sovereignty of the Crown in Parliament and a Crown in the courts". Lord Steyn has described the principle of parliamentary sovereignty as "a construct of the common law" and suggested that a different constitutional hypothesis may apply in future. Lord Hope has gone further to suggest that "the English principle of absolute legislative sovereignty of Parliament ... is being qualified". Both Law Lords were speaking in the context of a case concerning the validity of the Hunting Act. Proponents of a new constitutional settlement should perhaps stop and consider their reaction if this controversial Act had been struck down by the courts.
Parliamentary sovereignty means that law is made, and if necessary unmade, by elected Members, who are democratically accountable to the people. Simply removing hard decisions - like whether to drop prosecutions that give rise to national security concerns or to deport terrorist suspects - from the hands of Ministers and handing them over to the courts does not depoliticise decision-making: it politicises the judiciary. If judges start to determine questions which are in essence political, then people will rightly wonder for whom they speak and to whom they should answer. As US Supreme Court Justice Antonin Scalia has put it, "if judges are routinely providing the society's definitive answers to moral questions on which there is ample room for debate - rather than merely determining the meaning of democratically adopted texts - then judges will be made politically accountable".
In other jurisdictions judges are appointed by politicians or are subjected to confirmatory hearings by the legislature. Justice Scalia remarked that he was unhappy about the intrusion of politics into the judicial appointment process in the US, but he preferred it to the alternative, "government by judicial aristocracy". Neither is desirable in Britain. But the continuing independence of the judiciary requires that judges are not drawn into the political arena.
There is little doubt that in making a sport of populist attacks on the judges, often over sentencing decisions, a succession of Labour home secretaries - notably David Blunkett - have helped to sour relations between the executive and judicial branches. As the Government's adviser on terrorist legislation, Lord Carlile of Berriew QC, warned, "if the Government undermines the judiciary then the judiciary might be tempted to undermine the Government." But if Labour spin doctors failed to understand the dangers, some judges have in turn laid themselves open to legitimate criticism by their refusal to apply mandatory minimum sentences passed by Parliament with the clearest of intentions. It is controversial when the judiciary are seen to be ignoring public concern about law and order. But they certainly should not ignore the law of the land.
Some politicians see the trespass by judges into the political arena as wilful. David Blunkett railed this week: "Why don't some of our senior judges take off their wigs, abandon their robes and stand for Parliament?" There have probably always been turbulent judges, but it is wrong to characterise Britain's careful judiciary as having some kind of political motivation. In fact, it this Government, and not moves by the judiciary themselves, which has opened the gate to greater judicial activism. First, poorly drafted laws and weak parliamentary scrutiny has resulted in a huge growth in judicial review. Bills are routinely subjected to guillotines, giving Parliament little time to pick up on problems - especially when Ministers table amendments to their own legislation late in the parliamentary process. Amendments to legislation are tabled before the original bill has been enacted. Laws are passed, but never implemented, because government thinking has moved on. Politicians can hardly complain when judges have to sort the mess out.
But Parliament's weakness must be addressed by strengthening it. The remedy cannot lie in allowing the judiciary to assume the role which the legislature should properly have in holding the executive to account. In 1995, Lord (then Mr) Justice Sedley said that "modern public law has carried forward a culture of judicial assertiveness to compensate for, and in places repair, dysfunction in the democratic process". But unelected judges are hardly in the right position to repair democracy, and if they attempt to do so they will imperil their reputation and position.
The second cause of greater judicial activism is the Human Rights Act, which has fundamentally changed the nature of the judiciary. The European Convention on Human Rights used to operate as a backstop. Now, it is at the forefront of the legal process. Judges are required to interpret legislation - creatively, if necessary - in order to make it compatible with the very broad principles of the Convention. In these circumstances, it is not always clear where interpreting the law ends and making the law starts.
For instance, some lawyers argue that judges have seized on Article 8 of the Convention to develop a general law of privacy. It is true that judges were shaping common laws of privacy before the Human Rights Act was passed, but the Act has licensed a sharp acceleration towards greater protection. Yet elected politicians - never slow to create new laws - have been reluctant to take this course. Parliament has been hesitant because the issue is a difficult one, involving fundamental and conflicting rights. Cynics might add that politicians have been unwilling to take on the press. But whatever the motive, and whether or not we think that a privacy law is a good thing, the fact remains that Parliament declined to pass one, yet the judiciary is pressing ahead.
Even this Government can now see the consequences of forcing judges to apply abstract rights to real cases. Ministers once talked proudly of creating a ‘human rights culture'. Now they acknowledge that the Human Rights Act has created a culture of rights without responsibility. The real culture change that the Human Rights Act created has been to encourage individuals in our adversarial legal system to raise every claim and counterclaim as involving a breach of their human rights. The new language of rights has demeaned their value. As protestors implore us to act against China for abuses of human rights, a prisoner uses the same language to claim an infringement because the lavatory in his cell is broken. Now it appears that even pirates can enjoy protection: the Royal Navy has been warned that they must not detain Somalian pirates intercepted on the high seas, because they could use the prohibition against torture in Article 3 to claim asylum in the UK rather than being returned to their country.
Such cases repeatedly draw attention to how the courts deal with issues that touch on public safety, national security and our armed forces. Within the last fortnight, we have learnt that the Human Rights Act has prevented a foreign national terrorist - described by Mr Justice Collins as "a truly dangerous individual" - from being deported; prevented the Justice Secretary from objecting to the parole of murderers, and insisted on proper equipment for our armed forces, all on the grounds of protecting human rights. You do not have to disagree with these individual outcomes to worry about whether the courts should have been sitting in judgement on the matters. It should not take a court ruling to secure adequate equipment for our armed forces, and the extension of human rights laws into the field of military conflict could be highly problematic in future. There is a powerful case for judicial oversight of parole decisions, but one which Parliament should debate and decide. It must be right to consider the danger that deported terrorists might be tortured, but if governments no longer have the ability to balance the considerations of national security, who does?
Some agree with Cicero that "the safety of the people is the highest law". Others think that human rights such as the prohibition of torture must be absolute. This thorniest of questions should be debated and decided, as the length of detention of terrorist suspects will de decided, in Parliament. And the Human Rights Act must be replaced with a British Bill of Rights so that we can help restore British parliamentary supremacy as against law made elsewhere.
Facing the Palace of Westminster across Parliament Square, a £100 million building is currently shrouded by scaffolding. When it opens next year, Britain's new Supreme Court will house what the legal commentator Joshua Rozenberg has described as "big judges". The potential for growing conflict between politicians and judges is obvious, and it must be avoided. A healthy democracy requires not just a separation of powers, but a balance of powers - a mutual respect between the courts, Parliament and the executive about their roles in the constitutional settlement. A turf war between government and the judiciary is a battle which both sides will lose.