Tim's and Matthew's excellent posts on judicial actvism sent me to the bookshelf to dust down my copy of Holding our Judges to Account. This was a speech given to Politeia in 1999 by Liam Fox when he held the constitutional affairs brief in the shadow cabinet, which I had a small hand in helping with.
The speech identified the way in which a generation of activist judges in the 1990's had explicitly acknowledged that judges were in the business of making law, as opposed to interpreting it, exemplified by the explosion in judicial review cases:
"They [ie. Judicial Review principles] are, categorically, judicial creations. They owe neither their existence nor their acceptance to the will of the legislature. They have nothing to do with the intentions of Parliament, save as a fig leaf to cover their true origins. We do not need that fig leaf any longer." (Mr Justice Laws, now in the Court of Appeal, 1994)
These activist judges believed in a higher authority than the supremacy of Parliament, and justified their constitutional approach because Parliament had become impotent in the face of the Executive. If that was true in the 1990's, how much more now?
The speech predicted (accurately) that the Human Rights Act would increase rather than diminish judicial activism, and called for a more transparent judicial appointment procedure together with, for the most senior judges, post-appointment scrutiny by a Committee of both Houses of Parliament. Symbolically, if nothing else, this would re-assert the supremacy of Parliament.
In 1999 that seemed radical. Re-reading it I am not sure how effective it would now be. The question remains: how do we scrutinise judges (unelected law-makers) and make them accountable, without threatening their necessary independence?
Although Politeia published the speech as a pamphlet, there isn't a .pdf on its website. It's a pity - it makes an interesting read in the light of the last ten years.