Judges or Politicians?

This is a transcript of the short introduction given by John Jackson, Chairman of Mishcon de Reya, in the ‘Judges and Politicians’ session.

The discussion we will have shortly is about who should define the boundary between the interests of the state and the interests of its citizens – the judges or the politicians.

That question is not answerable without considering some other questions: ‘What is the state and who are its citizens?’ and ‘Should the state define the freedoms of its citizens or  the citizens define the limits of their state?’.

Those questions flavour the whole of this convention. A convention which has come about because of growing  disquiet about invasions and restrictions of fundamental civil liberties by central government and its agencies – the state. Much of this disquiet is encapsulated in the pejorative term ‘The database state’.

Close on 35 years ago, Leslie Scarman, already a greatly respected judge, said, with astonishing prescience, that he foresaw a situation in which our rights and liberties would depend on and be defined by, not the law but  complex governmental machinery subject only to administrative and political controls.

 Such a system, he said, could, no doubt, be made to work in an age of computer devices and rapid communications: but where would be the safeguards against power? The men who pressed the buttons would be the very same men as those manipulating  Parliament  – the only safeguard left. Should we be content that the acute problems that would arise between the citizen and such a system were to be resolved by the men who operated the system?

 Had Leslie Scarman been a member of this panel he would have said ‘Not the politicians’. But  he would have said also  ‘Nor should it be the judges’. He would have thought that the question should not even be put.

 He believed that we needed a new, democratically created, constitutional settlement that would limit the powers of both Parliament and government and, as the highest law – unchangeable by government or judges, would entrench the rights of citizens and provide the framework and context within which conflicts between  citizens and the state would be resolved.

He would have been intensely interested to hear whether his view was shared by any of us here today.



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