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The Judiciary: The Third Branch of the State

The Judiciary: The Third Branch of the State by Lord Justice Gross, Senior Presiding Judge for England and Wales at the RCDS Lecture on 3 April 2014.

“I should make one matter clear at the outset; although in what I say I am necessarily mindful of my position as a serving Judge, the views I express to you here are my own. The notion that the Judiciary has only one view on any topic, let alone a topic of this nature, is simply unreal.

There are many reasons for a dialogue between the Judiciary and the Armed Forces, very much including this institution which provides such enviable opportunities for study and reflection. To my mind, the Armed Forces and the Judiciary fulfil the two primary functions of a State: the Defence of the Realm and the provision of a justice system. If the State succumbs to its external enemies, all is lost. If a State does not uphold law and justice, no other rights can be enforced or entitlements enjoyed. Think even if only for a moment of those states where rights are precarious. We each therefore, in our separate ways, play a vital role. We have much in common; a strong professional ethos; values of self discipline; a preference for reality over posturing. There is additionally the need to understand and address the reality that the reach of the law now extends into some areas, perhaps only decades ago the exclusive province of the Executive. There is also one critical difference. Whereas you are (if I may put it this way) the sharp end of the Executive, we are the third branch of the State, distinct from both the Legislature and Executive. I return to Sir Tasker Watkins.

Sir Tasker Watkins, who would ultimately become the deputy Chief Justice in 1988, was awarded the VC for his conduct in battle in Normandy shortly after the D-Day landings. As a young Lieutenant, and the only officer left in his company, he led his men across a booby-trapped cornfield whilst under heavy machine-gun fire. They then took two enemy gun posts and held off an enemy infantry counter-attack in which he and his men were outnumbered by almost two-to-one. He then led a bayonet charge which, as the London Gazette put it, ‘resulted in the almost complete destruction of the enemy.’

His orders, if he had received them along with the rest of his battalion, were then to withdraw. He never received them. His company wireless had not survived the day’s events. The rest of his battalion did however receive the order, and withdrew. Alone behind the lines, he had to lead a handful of men back in the hope of finding and rejoining his battalion. This meant passing through the enemy position at dusk with the light failing and then back through the mined cornfields. Whilst doing so he was challenged at close quarters by soldiers manning a gun post. He ordered his men to scatter, and then charged the post in the face of Bren gun fire. He single-handedly put the gun post out of action, and finally led his men back to the battalion headquarters. He, they, had had a busy day. The Gazette summed it up in the terms,

His superb gallantry and total disregard for his own safety during an extremely difficult period were responsible for saving the lives of his men, and had a decisive influence on the course of the battle.

It can, I think, safely be said that Sir Tasker knew as well as anyone can the importance of defending democracy, the ideals it represents, and the principles it embodies. Like so many of his generation, he was willing to sacrifice all in their defence. Victory in that armed struggle was essential if they were to survive.

Victory at arms however was not enough. Effective defence of the realm was and is a necessary condition for the survival of any liberal democracy, and all that that entails. It has, however, to go hand in hand with something more: a strong and independent legal profession and judiciary. More importantly still, it has to be underpinned by a commitment by the State to the rule of law. These are the themes I wish to develop tonight, underlining the essential roles played by both the Judiciary and the Armed Forces.”

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