Lord Mance stresses separation of powers in Bahamas address

A Supreme Court Justice has called it “critical” that the role of judges in a representative democracy is properly understood as one of applying the law and not making it, broadly speaking.

In a lecture to lawyers in the Bahamas last month during the Judicial Committee of the Privy Council’s sitting in that jurisdiction Lord Mance reflected on the third pillar of the estate, the judiciary and its role in a representative democracy.

While he stressed the importance of the judicial role, especially in the wake of Miller, Lord Mance acknowledged Lord Reid’s declaration, made almost 50 years ago, that judges do indeed make law and that “We do not believe in fairy tales” any more — which lies in stark contrast to the “declaratory theory”, under which judges merely reveal the common law.

He said: “This is not to say that the declaratory theory has no continuing use. It is a way in which we explain why a development in the law or an over-ruling of a prior authority affects the case in which it occurs and all other cases, past or present – rather than having purely prospective effect as a change for the future.

“In that respect, the theory amounts to a pragmatic acknowledgement of the possibility of judicial error or second thoughts. The law is occasionally prone to that risk, like any other human institution.”

He added that precedent and analogy are checks on the discipline of judging but that too many can point to a problem rather than a solution.

Lord Mance also noted that judges “cannot be directly or personally accountable like agents or contractors for mistakes or faults in the judicial decision-making” and offers a number of remedies for this problem.

Read the full lecture here.