Judges and Politicians Session: Transcript

Here is a transcript of the London session on Judges and Politicians.

The draft transcript which follows is unedited or requires further editing. It is provided to the client strictly on the understanding that it may contain errors. In particular, it should NOT be considered a complete or correct record of proceedings.

CHAIR:  It has been a great day already where the boundary lies between the individual and the state. You know the members of the panel, I will just remind you and give you the order in which they will be speaking. Juliet Gardiner will start, she is a well known author. Followed by Professor Keith Ewing and he will be followed by Lord Goldsmith as we all know, the former Attorney-General. And Sir Geoffrey Bindman and Lord Bingham will finish the remarks. Each will speak for five or six minutes. We’ll then move into the sort of session we had in the plenary session. I will be as even handed as I possibly can be in selecting questioners or speakers. Although I will be even handed in that, and I am chairing this session, you should not think that I am even handed or neutral on what this is about.

I have a very definite point of view and I will say something about it now. As I said earlier, it is about how do we define the boundary between the interests of the state and all of us as individuals? Is it the judges or is it the politicians? May be neither. That question cannot be answered without considering some other questions: What is the state? Should the state define the freedoms of its citizens? Or, as I strongly believe, the citizens define the limits of their state?

That is a question which flavours the whole of this convention, which has come about because of growing disquiet about invasions and the restriction of fundamental civil liberties about Government and its agencies, the state. Much of that disquiet is encapsulated in the marvelous term, the “database state.” It happens that almost exactly 35 years ago, a very very distinguished lawyer and judge Lesley Scarman—you may remember his inquiry into the problems in Brixton—said with quite remarkable foresight that he foresaw the situation in which our rights and liberties would depend on and be defined not by the law but by complex governmental machinery, subject only to administrative and political controls. Such a system, he said, 35 years ago, could no doubt be made to work in an age of computer devices and rapid communications but where would be the safe guards against power?  Think what about Helena Kennedy said earlier. The men who pressed the buttons would be the very same men as those manipulating Parliament. Parliament, the only safeguard we have left.

Should we be content, he asked, that the acute problems that would arise between the citizens and the state in such a system, should be resolved by the men who operated the system?

Had Lesley Scarman been a member of this panel he would have said: not the politicians. He would, I believe, have also said and nor should it be the judges. He would have believed that the question should not even be put. He believed and I believe—I believed it for 60 years—that we need a new democratically created constitutional settlement that limits both the powers of Parliament and Government, and the highest law is unchangeable by Government and judges and would entrench the rights of citizens and provide the framework and context within which conflicts between the citizen and the state should be resolved.

I have just come back from three months in the United States and every time I am over there, I am struck by the fact that in this area, people do not ask the question: is it lawful?  They ask: does it comply with our constitution? Their constitution is a glue which keeps that society together. Maybe we need a glue, maybe we are a rather fractured society. Lord Scarman would be very interested to hear what you all here think today, and would be very interested to hear that, after the Panel members have spoken. The first to speak is Juliet Gardiner.

JULIET GARDINER: Thank you, John. The title of this panel: Who decides, judges or politicians?

I was going to of course say the unspoken option but of course my Chairman has blown my cover now. I am still going to say in an era when writing a constitution is seen as part of the peace process for new nations and new regimes, would a written constitution, as John suggests, provide a more effective safeguard for the brights of British citizens? Or, as we I think more properly should call them, British subjects. In such distinguished company today, among men who answer these very difficult questions in practice all the time, all I want to contribute is a very brief and necessarily immensely selective backward look at what use we can make today of the fact that safeguarding liberty was the founding principle of the contract man-made by entering into civil society in what can be seen as pre-lapsarian days when the sovereignty of the people was in its self regarded as a guarantee of the liberty; since man was free of despotic rule by state or church he would perceive his interests to be those of natural justice. I would not suggest a backward glance equates with nostalgic regret, with freedoms once held now lost to the power of the state, since as David has eloquently written this is regarded as both untrue and entirely contrary to the task in hand.

Indeed, the path of the legendary freeborn Englishman is a very frustrating one to try to track. Based as it is on the inalienable sovereignty of the crown in Parliament rather than sovereignty of the people, custom and convention, rather than any fundamental law. What looked like staging posts turned out not to be that. In 1215, Magna Carta enshrined not the rights of free men, put property owners – it was a political settlement. The next stepping stone, the English bill of rights, 1689, similarly turns out to be something of a chimera, another political settlement, not between King and barons but Parliament and the King, who had abused the rights of the Protestants. But the following year of course, John Locke in his Second Treatise on Government essayed principles which Rousseau would develop and which have underpinned our project liberty ever since. That man, in a state of nature, enjoyed what is called a state of liberty, which was not however a state of license and nobody can take away or impair the life or what tends to the preservation of the life, the liberty, health or goods of another, a spirit very similar of course to Rousseau’s Social Contract in 1762 which delineated clearly man’s personal will and private interest may dictate him very differently from the common interest, and by entering into such a contract man loses his natural liberty and an unlimited right to all that tempts him and which can obtain. In return he acquires civil liberty and proprietorship of all he processes. Ideas of course which were a vital precursor to the French Revolution. The constitution of the newly independent Republic of America, adopted in 1787, was of course a compromise. More than compromise, it was in many ways a bundle of contradictions, intended to secure a balance between the powers of individual state and the federal Government, between executive and legislature, based on the political expediency diametrically opposed to liberty and justice. Since the price of securing compliance of the southern states was to leave the institution of slavery untouched, it was seen that is price of unity. However though the constitutional was essentially an exercise of power by an exclusive elite, it was always intended to be a work in progress a living document, as indeed it has proved applied elastically by political leaders interpreted creatively by the Supreme Court and rewritten on many occasions by formal arrangements, and amendments and the Bill of rights. In the American Bill of rights, finally agreed in 1791, the first amendment assumed basic freedoms of speech, assembly and the press, granted freedom of religion to all faiths or none. It has like the constitution been subject to repeated political and judicial challenges, the most recent one last summer. The French declaration of rights of man and the citizen in 1789 was a tabula rosa for a new nation, a yard stick in the event of course hostage to fortune against which all citizens could measure the behavior of Governments, since ignorance and neglect for contempt of human rights are the soul cause of public misfortune and corruption of Government. However the declaration of the rights of man was changed twice within six years of drafting, once to restrict it once to expand it. It was scrapped by Napoleon less than 9 years later. In the 200 years since it was written there have been 37 formal amendment to the American constitution and many more challenges. Yet it has not proved possible to overturn the amendments that allow individuals to bear arms nor to challenge Guantanamo Bay and extraordinary rendition as being unconstitutional. So, if these most historic attempts to secure liberty by fundamental laws and principles proclaimed have proved flawed, inadequate, malleable in the interests of expediency or worst, what can we take from them today in order to resolve who decides debate? I think there have to be two answers to this question.

Since constitution-making, whatever we like to think, is an exercise of power, so we have to think about the location or the relocation of that power. One of the things I think we take away is language, a lexicon of absolutes, a declaration of inviolability, vigilance, and as Helena Kennedy said earlier, of struggle, of battle. The other is return to the basic commitment of the sovereignty of the people, giving it substance by creating a participatory process for the redrawing of a framework, a constitutional framework, for their rights and libertys. Such degradations do not function to implement a set of obligations fixed in history, cannot fully resolve the tension between competing interests and various visions of how the world can be, but they can, as said, provide the vocabulary for what must be an open ended argument about which interests should prevail and how best to achieve the ends. This will remain a hollow rhetoric unless under pinned by fundamental belief in the sovereignty of the people and more than that, the trust in that sovereignty.

We have before us examples. I think there are over 200 written constitutions throughout the world and about a quarter of them were written or re written in the last 25 years Canada and particularly South Africa are very vibrant examples. May be the spring time of an old world came last November, or in January this year in fact, the spring time might have come in November but the articulation of the spring time came in January, when Barrack Obama in his inaugural address echo the principles of the principles of founding fathers, all equal, all free and all deserve a chance to pursue the full measure of happiness. He went on we understand greatness is never a given it must be earned, journey has never been one of short cuts, or settling for less, it has not been the path for the faint hearted, rather the risk takers, doers, makers of thing. Some celebrated more often men and women obscure in a labour who have carried up the long rugged path to prosperity and freedom let us across the Atlantic read that too as an exultation to keep on that rugged and very obstacle-strewn path to a new form of constitutionalism that was in the the mind of Payne, Locke and Rousseau as of their modern day equivalents, we must hope.

THE CHAIR:  Thank you Juliet.


LORD BINGHAM: Ladies and Gentlemen, we have heard much discussion in recent years about British values. Questions have been asked about whether such values exist and if so what they are. To our forebears of one, two, or three centuries ago the answers to these questions would have been obvious. What distinguishes Britain, they would have said—proudly and without hesitation—is that personal liberty flourishes here as nowhere else on the face of the earth. And they would, to a very large extent, have been right.

Resonant declarations to that effect can be found down the centuries.  But let me come to more recent times.  During the Second World War, when the survival of this nation really was on the line, a committee chaired by Lord Sankey, a very distinguished former Lord Chancellor, set out to answer a question raised by HG Wells in 1939 and the question was this: What are we fighting for? The committee’s answer was a declaration of rights published in 1947. Advice was taken from many sources: President Roosevelt, the Archbishop of Canterbury and AA Milne. Here was a modern home-grown British declaration of rights described as fundamental and inalienable.

Article 9 was entitled “personal liberty” and I hope you will bear with me if I read it.  It is quite long.  ’Unless a man is declared by a competent authority to be a danger to himself or to others, through mental abnormality, a declaration which must be confirmed within 7 days and thereafter reviewed at least annually, he shall not be restrained for more than 24 hours without being charged with a definite offense, nor shall he be remanded for a longer period than 8 days without his consent, nor imprisoned for more than 3 months without a trial.

At a reasonable time before his trial, he shall be furnished with a copy of the evidence which it is proposed shall be used against him.  At the end of the three month period, if he has not been tried and sentenced by due process of law he shall be acquitted and released.  No man shall be charged more than once for the same offense.  Secret evidence is not permissible.  Statements recorded in administrative dossiers shall not be used to justify the slightest infringement of personal liberty.  A dossier is merely a memorandum for administrative use.  It shall not be used without proper confirmation in open court.’

The committee made no reference to the databases, the cameras, the gathering of huge quantities of personal and biometric information, the empowering of over 650 public bodies including 440 local authorities to obtain communications data, the introduction of an I D card rich in personal information and so on.

It made no reference because, doubtless, it failed to foresee these developments.  George Orwell’s 1984 had yet to be written.  But we cannot doubt how, if blessed with the gift of foresight, the committee would have reacted.  So what has changed over the past 60 years – a short period in the life of a nation.

There have, I suggest, been two catalysts of change.  The first catalyst is technological advance.  It is now technically possible to observe, to record, to track, to measure, to analyse, to retrieve in a way that could never be done before.  These new technological methods have, of course, many benign applications, a Luddite approach to them would be absurd but the acquisition of great powers by the state is not a reason for using them, we have after all enjoyed for many years the power to destroy the world but have wisely refrained from doing so.


The acquisition of great powers of the State should rather prompt a principled determination to ensure that the permissible exercise of such powers is strictly defined, regulated and monitored so as to guarantee that any intrusion into the liberty and privacy of the individual is fully justified by an obviously superior community interest.

It is an old but true saying that the condition upon which liberty has been given to man is eternal vigilance.

The second catalyst of change has been security.  Security against terrorist attack, security against the commission of crime: these are not considerations which any rational person would dismiss.  But nor are they considerations the mere invocation of which trumps any other. Eternal vigilance must again be the watchword to ensure that intrusive powers are limited to what is demonstrably necessary to ensure that the powers convert for one purpose are not used for another, to detect and eradicate abuses.

It is worth recalling John Locke’s salutary warning: “As soon as men decide that all means are permitted to fight an evil, then their good becomes indistinguishable from the evil which they set out to destroy”.  It seems clear that the last half century has seen an erosion of values once held dear.  This is not the work of one party or one government, certainly not of the present government which, in enacting the Human Rights Act on coming into office, took the single most powerful step in another direction, But overall, an erosion nonetheless.

Can we stem or reverse this trend?  Yes, to coin a phrase, we can. How?  The first thing is to inform and arouse public opinion.  People do not, on the whole, mind what is going on because they haven’t been brought up to cherish the tradition of liberty: they don’t in large measure know what is happening and they think of infringement of liberty as something that only happens to others.  The responsibility of the media to inform, explain and warn is paramount, notably discharged by Henry Porter—week in week out—and we must hope that is greatly reinforced by this convention.

There must also be a determined long term educational ambition.  For the last few months, the great constitutional building blocks of our liberty have been modestly but movingly displayed in the British Library: the Magna Carta, the declaration of Arbroath, the Bill of Rights, and so on, some understanding of the significance of these documents should be imparted to everyone in this country as part of his or her understanding of the country to which they belong.

Responsibility for protecting the liberty of the citizen must also rest on Parliament and the House of Commons, traditionally regarded as the watchdog that will arrest any extension of ministerial power. But the watchdog has lacked velocity of late, if, that is, government of reasonable majority can impose its will on its own members, only regardless of its private reservations and thus on the House of Commons as a whole and so legislate without effective restraint then that is a defect in our constitution.  Compounded by an increased willingness to bypass the House of Lords, which calls for attention, the Commons should be a bastion and defender of our freedoms, not an accomplice on their unjustified erosion.

And then thirdly, there is a responsibility on the courts: from their development of habeas corpus onwards the courts have—on notable occasions, but not always—proved staunch defenders of personal liberty.  The law favours liberty, says Sir Edward Coke. And so it should, but the courts have been fairly described as the weakest department of government.  They can initiate nothing.  They cannot annul legislation even when it is incompatible with the human rights convention.  They acknowledge as they have always done, the supremacy of Parliament.  They can check executive lawlessness, but they cannot dictate executive policy.

The Prime Minister said in June 2008, that these issues—how we maintain our security and advance our freedoms—are some of the biggest questions governments have to face.  They are some of the biggest questions which we all have to face.  That is why this convention is so timely and so important.

A candle may today be lit or re-lit in Britain, which we may fervently hope shall never be put out.  Thank you.

THE CHAIR:  Thank you very much.  Now, an opportunity for you all to participate…A question there.

NEW SPEAKER, CHRIS COVERDALE: My name is Chris Coverdale from campaign to Make Wars History.  I gave out questions for Lord Goldsmith and Bingham and I would be greatful if you would arrange for them to go out on the convention website together with the answers.

I would like to ask a question of Lord Goldsmith.  The right to life underpins all other freedoms.  They are useless if we have no life to uphold them. Why did you and your colleagues join the right to life, sorry deny the right to life, to one million Iraqis including 300,000 children and why did you as attorney general fail to initiate criminal proceedings under the International criminal court act against UK citizens and government ministers for genocide?

THE CHAIR:  That was predictable and I am sure will be answered.  Can we have another question up from the block at the back please.

NEW SPEAKER:  I would like the convention to think a moment about Brian Hoare to ask you whether you consider him to be the sort of person who has had to struggle on his own without probably without Legal Aid or much of it to continue his enduring stand in Parliament square.  The other question, and I can see you’re all going to heave a giant sigh as I will mention immigrants and asylum seekers, who Helena mentioned before.  Why is it that there is indefinite detention of some asylum seekers as I understand?  so I know that this is a whole thing on citizenship but could you elucidate the law on that, please.

CHAIR:  Thank you very much. Peter would you like to go first and then Lord Bingham, perhaps you.

LORD GOLDSMITH: I will deal with Chris Coverdale’s question first. You know the position is that I do not agree with your point of view, I respect the fact you hold it but I don’t agree with it. There was a complaint, looked at by the Prosecutor General of the European Court about the activities of British forces in Iraq and it was an independent assessment of what look place. We can disagree on what took place, what I will not accept is that there was any criminal offence committed by anybody.

NEW SPEAKER: Lord Bingham.

LORD BINGHAM:  I have nothing really to say in answer to that question.

CHAIR:  We might just perhaps…

LORD BINGHAM:  Both questions? I have an observation about the detention of the people pending deportation. The law, I think, is perfectly clear: that people can be detained for a reasonable period, pending the deportation process. I learned in the last two or three days of statistics which showed that one person awaiting deportation had been detained for over eight years. I do not know the facts of the case, but if true they are horrifying .

CHAIR:  Geoffrey?

Geoffrey Bindman:  One of the questioners made a reference to Brian Hoare, who campaigned outside Parliament for a number of years. I am glad to say my firm were his lawyers. The lady has raised the question of legal aid and clearly someone in Brian Hoare’s position had great difficulties in getting legal aid. That emphasises the fact that there is a heavy burden on lawyers, which is not often recognised, of trying to represent people without legal aid in order to ensure that justice is done as far as possible. This again emphasises the absolutely fundamental problem of people not being able to get proper legal advice and representation. It doesn’t go to the root of our system of justice, it goes to the root of our democracy when there is no equality before the law.

Keith Ewing: Can I say Brian Hoare, he is the man who was protesting outside the gates at Westminster in Parliament square and what is interesting about his case apart from the point made by Geoffrey is that he is the man who through his demonstration led to the introduction of legislation which banned all demonstrations within a one mile radius of Parliament unless the people in question had a license from the police for their demonstration, as a result of which it led to the famous prosecution and conviction of Maya Evans and Milan Rai for reading out the names of the dead at the cenotaph during the invasion of Iraq. What is interesting, there have been several prosecutions now under that provision, what is interesting, for those who have an unequivocal faith in rights as a solution to liberty, there have been several prosecutions but in none of these cases has the Human Rights Act been used successfully to defend those seeking the right to protest peacefully outside Parliament or outside the residence of the Prime Minister.

CHAIR:  We’ll take a brace of questions from this block, there is an arm raised down there.

NEW SPEAKER: Hello. Thank you. My name is Peter Cultman trustee of the Joseph Roundtree charitable trust. I want the panel to address what I see as a catch as catch can. What underlies all our discussion is how we control our Government, how we stop our Government taking from us the liberties we value. This is extremely difficult since we do not have democratic control of that Government. The democratic deficit in this country is a truism, something the power inquiry addressed a couple of years ago and made number of sensible suggestions. The problem is to get the suggestions implemented, the Government itself has to take action and the Government is unwilling to do so. I have to say that Gordon Brown did bring in a Green Paper which seemed to contain number of the suggestions then lost his nerve. The problem is if you have a Government elected under undemocratic system, which is what we have, they are never going to take away from themselves the power to do the things they want to which may not be our interests.

CHAIR:  Thank you very much. Another question from this block, down here.

NEW SPEAKER: Hello, my name is Christopher Dingle, I am a law student and my question to Lord Bingham and Lord Goldsmith. With the new Supreme Court coming in do your Lordships consider it is an opportunity for the courts to almost reassert themselves in a new role, may be as a sort of guardian of the constitution, may be to the cost to some extent of Parliamentary sovereignty in that they can protect the rights we have been discussing today?

NEW SPEAKER: Thank you very much.

NEW SPEAKER: We have not had a Green Paper yet, we had a document last year on the governance of Britain. A Green Paper I believe is going to come out shortly and I may mention that later. Julia would you like to respond.

JULIET GARDINER:  All I would like to say is the point that the Governor of the Joseph Roundtree trust made, about how you get a Government to vote away its powers. I have nothing really to say other than to endorse what he says when we find out incredibly difficult to get any form of electoral reform-  any form of proportional representation when you have Government no longer in need of making such alliances. I underline that point, it is not original but it is all I would like to contribute.

KEITH EWING:  To follow up on the same point, we have become obsessed in this country by looking at constitutional reform, looking at the United States or other English speaking countries and I suggest our obsession has obvious explanation We are now part of the European Union, there are other European democracies that do things differently to the way we do things. What is striking about major European countries is not the fact they have written constitution which I think is is in incidental but they have Parliament, true of many European countries, a Parliament at which no one party has total control so Government has to govern with the support of other parties. Secondly, they have Parliament with formal powers of control over the executive. I gave the example of Sweden which I mentioned in my short presentation, where there is the constitutional commitee of the Reichstag, power to veto legislation they find to be unconstitutional, that veto can only be overruled on the floor on the house by five to six majority of the chamber. That would be a real surrender of power by Whitehall to Parliament. If we’re going to do it, it has to be composition of Parliament and two, on the giving of real power to Parliament and no-one is talking about these things at the present time.

CHAIR:  That Swedish arrangement is part of the Swedish constitution and Swedish citizens know it.

Keith Ewing : It is part of the constitution but I don’t think it is essential that it should be.

CHAIR:  Geoffrey?

SIR GEOFFREY BINDMAN: I have not much to say on this except that it does seem to me there are two ways forward, one structural change in the parliamentary system and the other is to get the popular will expressed in some way. It seems to me that the people have to make their voice heard with Parliament and have to insist, at least at the time of a general election—the only time the people’s voice has impact—to make sure it demands the necessary changes are made.

CHAIR:  Peter?

LORD GOLDSMITH:  Joseph Roundtree, I commend the work done, your point really is Turkeys don’t vote for Christmas. Actually, if you look at the record in the early days, particularly of the Labour Government, you do find number of areas in which power was given up. Power was given up at a time when there was in a sense no need to do, by both decentralising, both in relation to the Bank of England, in relation to devolution. So it is not impossible that political parties will take the view that it is in the best interests of the country that they do make change but how do they get to that view, ultimately as a result of the belief that the next Christmas is only going to come if they are elected on a platform that carries public support. That is our job to make people think that is what they need to do.

Lord Bingham: On the point about controlling the Government, I think one has to rely, however inadequately, it is expressed through the system of representation, one has to believe and I certainly do, that in the end, if public opinion is strong enough on an issue, it prevails. And so I think it is a question of influencing those who represent us in Parliament, towards the ends that we favour and if there is sufficient popular support, I think it will prevail. On the question about the Supreme Court, when it is established in October, it will have for all practical purposes, the same powers as the appellate committee of the House of Lords has had and I do not myself predict that it will behave in any different or more assertive manner.

What the questioner would like, I think, would be a codified constitution of which the judges would be the guardians. As it is I think judges do regard them self as the guardians of the constitution but it is not an entrenched and codified contribution. Many people from contributions made would clearly favour such a constitution and there are clearly arguments in favour of it. But, you do have to accept as the price of an entrenched and codified constitution that you are giving more power to the judges, because they are going to be the final interpreters of it. Now, if the British people say we would like to do that, that is fine, as a former card carrying member of the judiciary I don’t take offence at that, I would be rather gratified. But, I think everybody has to be quite clear that that’s what they are doing and that they are putting the judges in a position which they have never occupied in this country to veto what Parliament has enacted.

CHAIR: A question down here:

NEW SPEAKER: Hello, my name is Naomi Rayner, I would like to know what the Panel think should happen after this convention and who do they think should do it.

CHAIR:  Thank you very much, I might pinch the answer to that myself. Another question from this block?

NEW SPEAKER:  John Fitzpatrick, the Kent Law Clinic in the University of Kent.  I very much agree with Lord Bingham when he says that if the opinion of the public is strong enough it will prevail.  I don’t agree with him that if the public opinion is strong enough to want the judiciary to have more power, that that would be fine.

I think that one of the mistakes that we’ve made with the move to give the judiciary more power with human rights law is to give away the ownership of the defense and the development of civil liberties to the judges.  And I think that has involved a lessening of activity by people, a lessening of respect for elected politicians and the more we delegate to a dozen law Lords and 35 judges in the Court of Appeal the defence of our liberties the more we will continue to lose them. That is because you know those who do ask for constitutions I don’t think have sufficiently taken the weight of Lord Bingham’s point that if you ask for a constitution you do give the judges more power and therefore you lessen the purchase and the extent to which you have the ownership of the activity of defending the liberties that you want and that is exactly what we have seen. You see, look at the title today, “Judges and Politicians.”  You know it used to be that we had 3 sites of power in the company; the judiciary, the executive, and the legislature.  Now the executive and the legislature can be bundled up in one word “politicians” that results in the less respect that we have for the legislature and the less purchase that they have as are elected representatives.  Our challenge is not to develop the sphere of legal constitutions.  Our challenge is to reinvigorate civil and political society so that liberties are defended by the people who need them.

THE CHAIR:  Thank you very much. The first question I am going to say something about because each member of the Panel in a sense has already dealt with it. The last question something quickly from panel members.

NEW SPEAKER:  I agree with my colleague from Kent that power once surrendered can never be recovered.  If we as a community decide that we want final decisions under a constitution of a group unelected and unaccountable, we will never get that power back.

I also take the view I don’t think it would be right for the community to decide that that is how they want to be governed because I don’t think that the community, today should be making irrevocable decisions which would bind our children who may not agree that this is a good way by which they want to be governed in the future>

NEW SPEAKER: The obvious point in a sense what we must be talking about is the process of constitution making and what that would actually involve.  Because we are not just talking about what the constitution would come out of it but how that would be arrived at and represented in what way, etc, etc. In many ways it is the process which is more important than the finished article, the process of how you construct that constitution is more important than the actual whatever you like to describe.

THE CHAIR:  Here, here.  Geoffrey.

NEW SPEAKER:  I think the idea that judges should not be involved to the same degree is partly based on the fact that the judges the judiciary the legal system has become more and more remote from everyday life and that the judges are not just seen as ordinary sensible people, examining subjects and coming to reasonable decisions.  They are seen as a kind of elite and I think the elitism of the legal profession is damaging to their reputation as wise and sensible participants in a constitutional process which is for the benefit of everybody.

THE CHAIR:  Thank you.  Peter, quickly?

LORD GOLDSMITH:  I want to preface it by saying some my best friends are judges!  But I am concerned and I think that is why the questioner made a very good point. I am concerned by an unthinking move towards giving more power to the judges.  Not because I don’t think that they are fine and rational and logical but because some of the decisions we are talking about are better made by the people me elect and we de-elect.  And if you look at a modern constitution which includes for example some of the things which weren’t important or didn’t figure in the 18th century, socio-economic rights, the right to housing, the right to clean environment, the right to water, all of those, those involve allocation decisions about scarce resources.  Those are the very stuff which we should be dealing with at the ballot box and not trying to write down for all time and leave someone who unelected to decide in the future.

Do not let politicians abdicate their responsibility by saying that is no longer for us to decide, you have chosen to give it to the judges.

Chair: In the course of the Belmarsh case, very much…

Goldsmith?:  I think it is very important to understand that the judges have not been bidding for more power.  If you read the white paper that preceded the Human Rights Act, it is called bringing rights home. It says in terms that the act is designed to avoid any striking down or annulling of acts of Parliament and it goes on to say the judges have not sought this power and there is no indication that the public wishes to give it to them.  The second statement I think is almost certainly right.  The first statement that the judges have not sought it is certainly right.  The judges had never for an instant asked for a power to strike down acts of parliament and have generally applauded the act as a very artful way of respecting the supremacy of Parliament.

THE CHAIR:  I will make a wrapping up remark.  We were asked a question what happens after this convention and who does it.  Well in a sense, we have all ready heard the answer to the second part of it.  Who does it?  It must be all of us.  We have heard about the sovereignty of the people: the people have lost their sovereignty to a very considerable degree.  We must take our own country back again into our own hands.  And there are going to be two opportunities to do that coming up certainly within the next 18 months.

Helena Kennedy this morning already referred to the fact that a general election is coming up.  And that really is an opportunity to make clear to the people who are supposed to represent us and not their party, what is important to us and what we want them to do.  Earlier than that I think there is going to be another opportunity, a green paper is coming about the governance of Britain.  I understand it will make references to our constitutional position, and we, the people, will be invited to and will have an opportunity to comment on it.  And I hope that what comes out of this convention is a really vigorous powerful concerted movement to give a clear answer to government and to Parliament, to that question.  We want our country back.  Thank you very much.

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