The UK’s new supreme court could answer the vexed question of how judges might legitimately help the government confront terrorism

Finding ways of confronting terrorism should be a job for everybody but the judges, suggests Bill Jackson of Nottingham in a letter published in the Gazette two weeks ago.

As I acknowledged in previous columns, any lawyer would recoil from Charles Clarke’s idea that senior judges should have told the home secretary, in advance, what restrictions they would have permitted him to place on suspected terrorists. But those at the top do not take quite such a purist approach as Mr Jackson urges on us: Lord Woolf, as Lord Chief Justice, thought there were matters that it was ‘absolutely proper’ for him to have discussed with the home secretary of the day.

And should judges be regarded as forever tainted if they offer us the benefits of their experience in a speech, article or interview? Would this not help persuade the public that we are all on the same side in fighting terrorism, perhaps the greatest challenge of the modern age?

Even if judges should not talk to ministers, there is still a ‘constant dialogue between the judiciary and the legislature’ in legal systems such as ours. That is the view of legal philosopher Aharon Barak, who retired two years ago as president of Israel’s Supreme Court.

‘This dialogue does not take place at meetings between judges and legislator,’ he explains in his book The Judge in a Democracy (Princeton, 2006). ‘It takes place when each branch conducts its constitutional role.’

What Barak means is that, if a court declares a statute unlawful – or, in our system, incompatible with human rights – then the legislature will generally come back with a refined version. The second attempt may also be struck down, leading to yet further refinements.

Thus, the law lords declared indefinite detention of suspected foreign terrorists unlawful; Parliament introduced control orders permitting 18-hour curfews; the courts struck those down; ministers then tried again. It is all very slow and cumbersome – but it would presumably satisfy critics such as Mr Jackson.

How can we give the home secretary of the day a prompt and authoritative ruling on whether new proposals – such as 42 days’ pre-charge detention – are lawful? In my last column I promised to suggest an answer.

Let us return to the Supreme Court of Israel. This is, as you would expect, an appellate court, hearing criminal and civil appeals from the district courts. But it also has a role that is unique to Israel: sitting as the High Court of Justice to hear applications for judicial review, it acts as a court of first and last instance.

What that means is that, if you are challenging the decisions of government officials, you go straight to the highest court in the land. It follows, of course, that there can be no further appeal.

Real-time petitionsPetitions from suspected terrorists may reach the Supreme Court ‘in real time’, Barak has written. ‘The judicial adjudication may take place not only during combat, but also often while the events being reviewed are still taking place.’

The Israeli Supreme Court does not have to decide every case brought before it, though it takes a relaxed approach to hurdles such as standing and justiciability. It hears claims brought by campaign groups and, of course, residents of the West Bank and Gaza.

In little over a year’s time the UK will have its own supreme court. Since it is intended to take over the jurisdiction of the House of Lords, it has not been given the first-instance jurisdiction of its Israeli counterpart.

Some of its members have been considering various options for the court at a series of seminars with academics and practitioners over the past few months; the last was on Monday. I cannot tell you what they have been discussing because reporters have not been allowed in. But I do know that several law lords and appeal judges have visited the Supreme Court in Jerusalem while others have met the court’s judges on visits to London.

Decision timeThere are, of course, arguments against giving any court the first and last word on a case. It is easier to review other people’s mistakes than to get it right first time. The facts have been fully established by the time a case reaches an appellate court, allowing the judges to concentrate on the law.

But these objections loom less large in applications for judicial review, where the facts are rarely in dispute and oral evidence is not usually needed. And appellate judges are just as capable of getting the law wrong as their more junior colleagues. Even if you take the view that the law lords’ decision is ‘right’ because it is binding, it must follow that judges who dissent from a majority ruling have got the law ‘wrong’. Sometimes, even the ‘wrong’ decision now is better than the right decision in three or four years’ time.

The law lords will not be very keen on my idea. They rather like receiving their cases pre-digested, with all the issues laid out neatly for them to consider. There would have to be some sort of filter, allowing them to remit all but the most important applications to the lower courts.

But that would still give our most senior judges a legitimate way of confronting terrorism. It would establish the Supreme Court firmly in the public eye. It would save time and even money. Why not give it a try?