It is a great honour and real pleasure to have been asked to give the opening speech this morning. This year’s conference theme, and the focus of my talk, is ‘Becoming Stronger Together’. We were all probably taught from an early age that there is strength in numbers, that a rope made of interwoven strands is stronger than strands unwoven, that a successful team is more than the sum of its individual parts.
Superficially, these ideas would seem to stand in opposition to a fundamental principle that underpins all that we do as judges, namely judicial independence. As an institution the judiciary must stand apart and separate from the executive and Parliament. We must be institutionally independent. As individual judges we must decide our cases alone or only with those with whom we sit to hear a case. We do not seek outside opinion. We reach our decisions independently and uninfluenced by external pressure.
This might seem then to suggest that the judiciary and individual judges must exist in splendid isolation. If that were the case there might well be more to the claim of Alexander Hamilton that the judiciary is the weakest of the ‘three departments of power’ than even he suspected. He warned that ‘as from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced . . .’. The judiciary is separate from the executive and Parliament and without their resources. Without an ability to implement our own decisions and, as Hamilton well knew, where necessary to coerce. We can easily see why he was concerned.
Hamilton’s focus was largely on the influence or pressure that could be brought to bear by the other two departments of power, as he called them, on the judiciary. Today we would also be concerned with other sources of power or influence within the State: corporations, often multi-national, organised labour, political parties or groupings and the media, including social media. They all may challenge the judiciary, or seek to influence it in a way which undermines independence and even threatens to undermine the rule of law. That is entirely different from criticism of our decisions, or the way in which we work, which is entirely legitimate, indeed not unwelcome.
The question I have posed for myself is this: how can we become stronger together while remaining committed to institutional and individual judicial independence?