It is hard to see how Lord Browne-Wilkinson and his colleagues, hearing yesterday's appeal, could have done other than overturn the Lords' earlier ruling. Lord Hoffman had failed to declare both a personal and a family involvement in an organisation that was permitted to address the bench directly from a strongly anti-Pinochet perspective. Not only this, but he was reportedly heavily engaged in the argument in the case in a way that had underpinned that organisation's legal submission. His was the vital vote in a case in which the end result had been very controversial, drawing strong dissenting judgments from two law lords, and being at variance with an earlier ruling by the Lord Chief Justice, Lord Bingham and two of his colleagues in the High Court. If justice must not only be done, but also be seen to be done, then it is hard to see how the original decision could have been allowed to stand.
The rehearing in the new year will presumably have to disregard the judgements of the first House of Lords decision, treating them as though they have never existed. The rhetoric of Lords Steyn and Nicholls, which so excited the legal world just a few weeks ago, has been consigned by Lord Hoffman's bungle into a kind of legal limbo, from where they must scream silently for the attention of future jurists. The extent to which they are implicitly acknowledged in the fresh judgments will be one of the fascinating aspects of the new hearing.
In the longer term, Lord Hoffman may have done his colleagues a good turn by alerting them to how their world has changed. In the latter years of dank Tory rule, the judges became accustomed to participating in civil society as the patrons or supporters of a variety of vaguely liberal bodies, dealing with human rights, European law, penal reform and the like. It was partly through these activities, and the public speeches and appearances that went with them, that the judges managed to reconstruct themselves as open, modern and friendly after Spycatcher and the miscarriage of justice catastrophes that had engulfed them in the Eighties.
This civic engagement may now need to be re-thought, particularly in view of the recently enacted Human Rights Act, due to come into force in a little over a year. This legislation invites the judges to assume a far more activist role in guiding our parliamentary democracy as to the ethical solutions to various problems previously thought entirely political. In cases on abortion, euthanasia, torture, free speech and the like, it will matter enormously which judges hear which cases and to which pressure groups and research bodies they belong.
There is a strong convention in the UK constitution that judges should not be politically active in the formal sense of being engaged in one or other of our traditional political parties. It may be that the Hoffman catastrophe shows that the time has come to bring this convention up- to-date, so as to reflect the fact that politics in these post-Modern days is fought out across society as a whole and not just between traditional, monolithic class enemies.
There is another dimension to this judicial activism, as well. In the last 15 years, the judges have also allowed themselves to become involved in various extra-judicial roles involving the control of telephone tapping, the security service and other aspects of the secret state. Many of their number have seen fit to accept appointment to review sensitive political issues, such as the future of the UK's counter-terrorism laws and the culpability of the army for the events of Bloody Sunday. These activities should be carefully reassessed in light of the new political and judicial climate. It is a judge's job to judge, not to campaign, investigate or whitewash on behalf of others. This needs to be remembered or there is the chance that a series of Hoffmanesque debacles may lie ahead.
The writer is professor of human rights law at King's College LondonReuse content