Mr Howard and Tony Blair are of one mind on this. They believe that judges are thwarting legitimate attempts by the Government to make Britain more secure from terrorism. According to the Tory leader: "We all have a duty to play our part in dealing with the threat of terrorism. That includes both Government and the Opposition. It should also include the judiciary."
But this, as a number of former law lords point out in The Independent today, betrays a misunderstanding of the role of the judiciary. It is not the job of judges to "deal with the threat of terrorism", as Mr Howard asserts. Our justice system must never compromise its independence. We have the miscarriages of justice committed in response to terrorism by the IRA to remind us of the dangers of that.
The question of "judicial activism" is more complex. It would, of course, be outrageous if our judges were to become engaged in partisan politics. And the democratic legitimacy of the Commons must be respected. But in recent decades, and especially since the Human Rights Act was implemented in 1998, judges have been compelled to take on a more assertive role. This has been a significant development in Britain's constitutional history.
The role of the High Court has become closer to that of the US Supreme Court - both deciding when a person's individual rights have been infringed. And by giving the judiciary the authority to consider whether an Act is proportionate to the objective it is intended to achieve, the Human Rights Act has enabled judges to strike down legislation. It memorably did so over the detention without trial of foreign terror suspects last year. This role is entirely justified. If Parliament is too weak to block needlessly draconian legislation, judges are entitled to move in to fill the void. Indeed, they have a duty to do so. The Human Rights Act is there precisely for times such as this, when the calls for suspending rights become more strident.
Britain's constitution is constantly evolving. And it is doing so quickly now as our nation struggles to work out its relationship with the Continent and comes to terms with a powerful executive. A strong judiciary is not something to be resisted. Reactionary figures on the right point to examples of when the Human Rights Act has produced bizarre rulings. They are fond of citing the prisoner who was allowed pornography in his cell under the right to expression. But they rarely refer to successes of the Act such as the calling of an inquiry into the racist killing of Zahid Mubarek in a young offenders' institution, or the securing of a "next of kin" status in gay partnerships.
We should be especially glad that the law lords have such a prominent role at a time like this. The Government, obsessed with winning favourable headlines, seems determined to curtail civil and human rights - to little discernible benefit to society or the struggle against terrorism. The Tory Opposition is, if anything, more gung-ho than the Government. Clearly they have not learnt the lessons of their slavish support for the invasion of Iraq. The judiciary is acting as a bulwark against illiberal laws. It has a duty to do so, despite the complaints and veiled threats of politicians.
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