Law making

There has been concern among some people at the way in which some of our judges are making law, rather than applying it.

This was predicted when we signed up to the human rights act, that judges would have much scope in accepting or even inventing and interpreting applications of rights in particular cases.

This morning, in the Daily Telegraph, our most senior judge, Lord Phillips of Worth Matravers, expressed the opinion that there are too many people in prison, and that more money should be spent on "early prevention"programmes, whatever they are, to try to prevent offences.

He also admitted to a strong sympathy towards those who faced the prospect of a terrible and wished to take their own life beforehand.

On the first issue, it has to be admitted that we do have many people shut up in prison, more per thousand than most other countries in Europe, but it is also true that we send a smaller proportion of convicted offenders than most other countries. The learned judge is right and wrong.

The overall problem is that, although he would be shocked perhaps to hear it, he is treading on the ground of the politicians, partly because they have decided so but mainly because they represent us and are answerable to us. Judges are unaccountable, and their function is to apply the law without favour and without personal opinion.

If it is thought that important laws need to be changed, the correct place is parliament, and his lordship's opinion is no more important than yours or mine.