"We the Judges"

John Jackson (London, Charter88): I sympathise with the views of John Denham reported by Anthony Barnett. At least one very senior retired judge is believed to think that a written constitution reflecting a clear separation of the powers of the executive, the legislature and the judiciary is a bad idea because it would limit the ability of the judges to apply their independent discretion in declaring what our constitutional settlement is. This echoes the view of the Court of Appeal led by the then Lord Chief Justice- Lord Woolf, expressed in the Parliament Act case (Jackson and others v the Attorney General) that there could be (undefined) circumstances in which the Courts could limit the ability of Parliament (or the House of Commons using Parliament Act powers) to pass legislation changing the constitution. When the Parliament Act case went to the Lords two of the judges made clear their opinion that, increasingly, there were limits to the notion of parliamentary sovereignty and one, Lord Steyn, went so far as to suggest that there might (in an extreme case) be circumstances in which, constitutionally, the judges would have to "step in" after Parliament had acted. This is dangerous stuff. However wise and well intentioned they might be, we cannot have a situation in which an unelected, unaccountable judiciary has discretionary powers of that kind simply because they say they have. The uncertainty implicit in that thinking makes it a denial of the rule of law.  One thing is certain. If we ever do have a written constitution it will not start with the words "We the Judges----"