Subjects:

General Interest, Constitutional and Administrative Law

Based on the 55th series of the Hamlyn Lectures presented by the Honourable Justice Michael Kirby in November 2003, the issue of "Judicial Activism" is a live one in most countries of the common law. The accusation that judges have exceeded their proper function is often made by politicians, media commentators and even some lawyers. The accusers allege that judges should stick to applying the law - they should not make it.

The slightest familiarity with current and recent debates over judicial decisions in Australia, Canada, India and the United States shows that "judicial activism" is a topic that lawyers need to address seriously. In these lectures, Justice Kirby explores many cases including Bush v Gore and Lawrence v Texas from the United States.

In examining the judicial method in a topical context, Justice Kirby suggests that the debate over judicial activism has so far largely passed the judiciary of the United Kingdom by. However, he points out that recent developments make it unlikely that this state of affairs will persist.

The developments he mentions include:-

• The proposed creation of a Supreme Court for the United Kingdom
• The resulting identification of the Supreme Court judges as public figures
• The increased roles of the judge in reviewing legislation under the Humans Rights Act
• The developments in judicial review of administrative action

The new procedures for selecting and training judges and changes in the arrangements affecting the senior members of the Bar from whom the judges are chosen Justice Kirby suggests that the judges of the United Kingdom will not be immune from the debate over judicial activism that affects judges in most parts of the world. This makes an examination of what is happening to the judicial method in other countries with similar legal systems and judicial traditions particularly timely.