Opinion: Beverley McLachlin

The challenge for the legal system, in a pluralistic society, is to foster a culture in which people of all creeds, races and backgrounds appreciate the fundamental importance of the justice system and the rule of law to society; and come to see, despite negative experiences in the past, that the system is fair and that judges deliver justice in an impartial, effective manner.

How do we do this? Let me suggest a few possibilities. Through civic education, preferably starting in primary school; through institutions of civil society that cultivate respect for law and justice; and, above all, through a profession and a judiciary that exemplify the highest ideals and deliver effective justice.

What kind of judges do we need to provide justice in our complex, pluralistic world? We need judges who are not only fair and impartial, but who understand the complex world in which they live; judges who are courageous; and judges who understand the need to make decisions that impinge on political issues, without themselves being political. Above all else we need judges who adhere, and are seen to adhere, to sterling standards of ethical conduct.

First, judges need to understand the complex world in which they live and the difficult issues that they are called upon to judge. This does not mean that judges must become experts in security and cyberspace, or how society deals with difference. But it is not enough to understand the legal concepts involved; modern judges require a realistic grasp of the technologies involved and the consequences of deciding a particular issue one way or the other. And they need to understand the pluralistic, multi-cultural world in which they live.

Judicial education is essential to ensuring that judges have the basic understanding they need to do their job. In Canada, we have come to realise the importance of this. Our National Judicial Institute and other organisations focus not only on keeping judges up to date on the matters that come before them, but also on social context education to assist judges in working appropriately in our pluralistic, multi-cultural society. Scotland is doing the same, and we prize our partnership with you in this endeavour.

Today’s judges must also be courageous. The decisions that law and principle require a judge to render on the difficult issues of our time may not always please governments or the public. Judges, as never before, must commit themselves to doing the right thing, the principled thing. They must maintain the integrity of the law in the long run, even though it may bring criticism on their heads in the short term. That takes courage.

Today’s judges must make decisions on matters that touch on political issues, without being political. It is fundamental that courts are, and are seen to be, independent and apolitical. This is not as easy as it sounds. The difficulty stems from the nature of many of the questions modern judges are asked to answer.

Often the issues are controversial. Sometimes they require the courts to directly or indirectly reconsider what Parliament has done. Charges of over-reaching the proper judicial role, summed up in the pejorative term “judicial activism”, inevitably follow. The danger is that the courts come to be seen as political actors — unelected political actors — undermining public confidence.

The constitutionalisation of rights has accelerated this phenomenon. Since the adoption of the Charter of Rights and Freedoms in 1982, Canadian courts have been called on to grapple with a host of controversial subjects. And the same is increasingly true for Great Britain. The Human Rights Act 1998 requires the courts to interpret laws, insofar as possible, in conformity with Convention rights incorporated in the Act. If a law is declared by the courts to be incompatible with those Convention rights, it is for the political branches to remedy the incompatibility (or not).

There is no easy way out of the dilemma posed by the increased presence of difficult social issues on the judicial docket. Courts cannot say to a litigant who challenges a law on credible grounds, “Go away, we prefer not to decide your case.” They have no choice but to take these questions on, and furnish the legal answers the law and doctrine require.

The challenges the courts face as they advance into the heart of the 21st century are numerous and grave; the right response too often elusive. We should see these challenges, not as problems, but as opportunities – opportunities to improve our justice system, to revisit our sense of purpose, and revitalise our commitment to the rule of law.