Mr Bentham was no great admirer of the judiciary. He once said “the same fungus, which when green, is made into Bar, is it not, when dry, made into Bench?” He distrusted the judges. When drafting a “New Plan for the organisation of the Judicial Establishment in France” in the 1820s, he was adamant that judges should not be permitted to legislate: “Appointed for the express purpose of enforcing obedience to the laws, their duty is to be foremost in obedience. Any attempt on the part of the judge to frustrate or unnecessarily to retard the efficacy of what he understands to have been the decided meaning of the legislature, shall be punished with forfeiture of his office.”
The proper role of the judge in a democratic society continues to excite much interest and to provoke differences of opinion. Lord Sumption contributed to the debate in his recent Sultan Azkan Shah lecture delivered in Kuala Lumpur. He asked: what kinds of decisions should properly be taken by the judges and the courts, as opposed to other agencies of social control? He suggested that there is or may be an excess of judicial lawmaking. In this lecture, I intend to consider two distinct questions. The first is whether, on the purely domestic front, our courts are trespassing into areas which should not be their preserve. The second is whether the European Court of Human Rights is overstepping the mark in imposing political and social values on the UK for which it has no democratic mandate. Both questions raise big issues on which many have expressed views in recent years.