One of Britain’s most senior judges has conceded that there may be a US-style role for Parliament to question judges when the supreme court is up and running — because judges are increasingly active in creating law.

In a controversial contribution to a panel debate on judicial activism, Lord Neuberger of Abbotsbury told the Bar Conference last weekend that “increased judicial activism means increased media and political scrutiny of the more senior judges — at appointment and thereafter”.

He added: “We live in an age where democracy is regarded with almost religious reverence and the more activist the judges, the more pressure there will be for them to have democratic legitimacy and accountability.”

There was a powerful argument, he said “for something along the lines of the US Supreme Court hearings” that would give judges “legitimacy and help the public more in learning what judges do and what the rule of law means”.

The “Punch and Judy” knock-about of Parliament was not Parliament at its best and therefore that was not likely to be a suitable arena. He suggested: “It is in committees where I see the possibility of judges being asked questions.”

Lord Bingham of Cornhill, who has just stepped down as senior law lord, would not have agreed. In an interview with The Times (November 20, 2007) he made it clear that he could not see the point of any such questioning as proposed by ministers for new appointees to senior judicial posts.

“I simply don’t know what a parliamentary committee could ask that would not carry some political overtones. They are not going to ask them if they are fond of cats.”

He continued: “I don’t really know what would take place, unless it was purely a social chat.” In which case, he added, it would probably be better “if they went to the same parties”.

But the issue of judicial accountability does not go away. Lord Neuberger identified several factors that are pushing UK judges into being more activist. They included the increasing control that the legislative and executive enjoy — “control over 40 per cent of the GDP and increasing millions of employees”, he said. “This requires the judiciary to provide a balancing role.”

In the past 30 years there had also been a lack of an effective opposition to the party in power, what he called “a weak, at times moribund opposition and a relatively powerless local government”.

That vacuum had been filled in part by judges and more obviously by the press, he said.

Other pressures included the “welter of badly drafted legislation” that encouraged judicial intervention and made it harder to “justify a cautious approach to statutory interpretation”.

There was also the “sclerotic condition of much of the executive” and its obsession with procedures rather than outcome that “requires judges to be more interventionist”.

European law meant courts had powers to disapply statutes not conforming with European Union law, to overrule secondary legislation and executive decisions if they did not comply with the European Convention on Human Rights; and media pressure on politicians on topics such as terrorism and immigration meant that judges had an important role to play in ensuring that the rule of law in its widest sense prevailed, he said — “and that we have no part in disgraces like extraordinary rendition and Guantanamo Bay”.

And then there is the supreme court, to come into being next autumn. Even though the previous Lord Chancellor had said that the changes of name, status and location were not intended to increase its powers, Lord Neuberger observed wryly: “The only rule which my experience suggests is infallibly reliable is the law of unintended consequences.”

Most judges are likely to follow Lord Bingham’s view and oppose any notion of being questioned in a parliamentary committee. But as Lord Neuberger points out, the “innate conservatism of the judiciary” may weaken as judges who grew up in the “restrained Forties and Fifties are replaced by those raised in the Swinging Sixties and Seventies”.

His comments will seem bold. But as one member of the audience privately remarked: “English judges who think they are being judicially active should look at South Africa — that’s where real judicial activism goes on.”

Justice Edwin Cameron, of the South African Supreme Court of Appeal, was present to talk about how that activism takes place. It was not a question, he said, of whether judicial activism was tolerable, only “what form and forms of judicial activism are best tolerated”.

Judicial activism is intrinsic to the South African Constitution, he said. The judiciary itself was subject to the Constitution and its values and norms; and the Constitution expressly requires the judiciary, in interpreting law, to “promote the ‘purport, spirit and objects’ of the Constitution”.

And the appointees to the supreme court? They are publicly interviewed — and the public can see who is being appointed and their strengths and weaknesses. It may be that the UK supreme court judges do not favour becoming as active as their South African counterparts. But if they do, such transparency may be the price to pay.

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