john laws

7/24/2019 john laws

1/20

10/11/2015 Delivery | Westlaw UK

http://login.westlaw.co.uk/maf/wluk/app/delivery?&docguid=ID390A520E72111DA9D198AF4F85CA028&title=&altview= 1/20

Public Law

1995

Law and democracy

John Laws

Subject: Constitutional law. Other related subjects: Administrative law

Keywords: Constitutional law Executive power Judiciary Politics

*P.L. 72 In 406B.C., towards the end of the Peloponnesian War, the Athenians were

victorious in a sea battle at Arginusae, to the south of Lesbos. But 25 Athenian ships had

been lost, with their crews. A north wind, of the kind that still today blows very strong in

those beautiful but unpredictable waters, had hindered any rescue. In Athens, still

governed by its direct democracy, the eight commanders were blamed. In their turn theyblamed the trierarchs, the captains of individual ships. Proceedings were brought against

the generals. The Council of the Athenians, which prepared the case for trial before the

Assembly of the people, had yielded to public anger and decided that they would all be

tried together, on a single motion. That was unfair and contrary to the law: each should

have been entitled to have his separate case judged on its merits. A motion was brought to

challenge the procedure as invalid. The presiding committee had to decide whether to

accept this motion, or to allow an immediate vote on a resolution to try all the generals

together. They were intimidated by the people, the democratic voice. There were threats ofimpeachment and arrest. The presiding committee gave way. The eight generals were tried

together on a single vote. They were condemned to death. Six were executed: they

included the son of the great statesman, Pericles. The other two, as the historian Bury

coyly puts it, had prudently kept out of the way. But the presiding committee had not

been unanimous. Unanimity was not required for their ruling. One member, the

philosopher Socrates, had stood out against the illegal and unjust procedure for which the

people bayed, although in vain. Afterwards the Athenians repented. They knew that what

had been done was illegal. Socrates had been right, though when, seven years later, he

reminded his own accusers of the fact, it did not save him from sentence of death.

Democrats, no doubt, do not like to be reminded of democracy's failings.

In this article I propose to deal with what I conceive to be the intricate relationship

between the ideal of democracy and the ideal of law, not in fifth century Athens in

twentieth century England. But, despite the shame of Arginusae's aftermath, this is a time

at which to pay tribute to Athens: the year 1994 is an anniversary of democracy: 2500

years ago, *P.L. 73 Cleisthenes established the reforms which set in place the democratic

constitution under which those extraordinary achievements in the arts, in political thought,

in drama, architecture, and philosophy were accomplished or inaugurated in that small

city-state. I shall be saying that a democratic constitution is in the end undemocratic if it

gives all power to its elected government at the same time democratic institutions are a

7/24/2019 john laws

2/20



necessary--though not sufficient--condition for the establishment of fundamental freedoms.

We should not forget, not least in the welter of present-day accusations against the

modern Greek state, that the Athenians invented democracy.

The ideal of law is no doubt a grand phrase, and I do not intend to embark on a

philosophical discussion of the nature of law. What I am concerned with is the difference

between those interests in a decent society whose service and protection is distinctly the

function of the law, especially our public law, and those which distinctly lie within the

province of the democratically elected legislature and government and with the

relationship between the two. This is a large canvas, and it is impossible to do it

comprehensive justice within the compass of a single article of reasonable length but I

hope, at least, that what I have to say may provoke further thought by others who, like

myself, are concerned with the service delivered to the people by our unwritten

constitution at a time when many of its facets are increasingly subject to critical scrutiny.

Judges and politics

The template for this article was the annual Public Law Project lecture which I gave in the

summer of 1994 with the title Law and Politics--No-go Areas for Judges?. The title is apt

for the first part of my present discussion, which concerns the notion that judges should

not enter into political issues. This is a proposition which needs to be addressed, since it

may too easily be regarded as a mantra which inhibits dynamic evolution of our

constitutional law.

I should at the outset make it clear that I am not concerned with what the English judges

are or ought to be entitled to say out of court. As regards that, the strictness of the earlier

position, established by what were known as the Kilmuir rules, has of course been much

relaxed by the present Lord Chancellor, and judges are by and large expected to make

sensible decisions for themselves about whether and in what terms to talk to the media or

otherwise express their views out of court. It is by no means my purpose here to engage in

the degree of effrontery to my colleagues on the bench, and for that matter to others also,

which would be implicit in my pontificating about how judges generally should approach

such questions. What I am concerned with is the present and future state of the law.

Next, it is necessary to dispose of the confusion and loose thinking that lies behind the

proposition that the judges are not concerned with *P.L. 74 political questions. It seems

to me that there has been very little rigorous reasoning as to what is meant by this. At one

level it is an obvious truth: no judge should decide a question before him according to his

own party political opinion but that means only this, that he should not favour a particular

resolution of a case because it would be convenient or helpful to the party for which, at

election time, he proposes to vote in the privacy of the ballot-box. This is no more than ajejune truth if a judge were seen to favour a particular party as such he would of course

lose all claim to impartiality. It is no more than an instance of the rule against bias. Even

outside court, a judge should no doubt appear to favour no political party, lest his extra-

7/24/2019 john laws

3/20



curial opinions be perceived to infect his decisions in court.

But this has nothing to do with the deeper question, whether good judicial decisions are

themselves fuelled by ideals which are not morally neutral, but which represent ethical

principles about how the state should be run, and in that sense may be said to be political

principles. The difficulty is that the term politics and its cognates are ambiguous they

may be taken to refer only to party politics, or to broader issues. If one accepts for present

purposes the more limited sense of the term, then it is of course uncontentious that no

judge is concerned with political questions. But as I have said this establishes only that the

judge should entertain no bias on personal grounds. This obvious fact has nothing to do

with what I have to say.

Let me next identify a sense in which it is manifestly false that the judges do not, or should

not, engage in issues which are at least concerned with political questions. It arises within

the territory of modern judicial review: within that jurisdiction the judges do, and must,

adjudicate in cases which involve questions of acute political controversy. The ban on viva

voce broadcasts by terrorist sympathisers1 the rights of persons claiming refugee status2

local government finance3 a local authority's ban on hunting across its land4 grant

maintained schools5 the disposal of nuclear waste6 the government's decision to ratify

the Maastricht Treaty7 : you cannot construct a litany of the subject matter of modern

judicial review without being struck by the fact that time and again it engages questions

upon whose merits the politicians (and others) are in rancorous disagreement.

There is no question, as once there certainly might have been, of the *P.L. 75 judges

standing aloof from such cases, or at least some of them, on the footing that the

controversial nature of their subject-matter renders them unfit for judicial determination.

Such a consideration is, first, irrelevant to the reach of the judge's jurisdiction. We now

possess a jurisdiction in which every public body is in principle subject to the supervision of

the court as regards every decision it makes. The only true exception, in the present state

of the law, is the Queen in Parliament, exercising the function of enacting primary

legislation, and this exception is now constrained so as not to apply where the legislation

on its face is credibly asserted to be inconsistent with the law of the European Union. I

shall have more to say about it. All other exceptions are apparent, not real: the dicta in

CCSU8 about national security, diplomatic relations with foreign sovereign states, and so

forth, only describe cases where it is thought (rightly or wrongly) that an intrusive

jurisdiction cannot sensibly be exercised, not cases where there is no jurisdiction at all. The

question left open in CCSU whether judicial review might go to the direct exercise of the

Royal prerogative has been concluded at Divisional Court level by Ex p Bentley9 in favour

of the existence of such a jurisdiction.

Other exceptions might be thought to consist in those cases where statute has apparently

excluded the jurisdiction of the court, as for example by a no certiorari provision. The

most celebrated instance is the landmark case of Anisminic10 but there the House of
http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-

7/24/2019 john laws

4/20



Lords found the means to uphold the court's jurisdiction--and thus the rule of law--despite

the terms of the provision in question (section 4(4) of the Foreign Compensation Act

1950). It is, as it happens, a striking feature of the law's evolution that since Anisminic

Parliament has made but modest use of no certiorari provisions11 but the point of

principle is that such cases do not, and cannot, mark any systematic limitation of the

court's jurisdiction, so as to amount to an axiom of the constitution, a rule which is

logically prior to the court's power and thus in part at least defines that power. Whenever

the bite of an exclusory provision is challenged, the issue will always be one of statutory

construction, and the construction of statutes is always and entirely within the keeping of

the courts. This is true even of Article 9 of the Bill of Rights 1688:

the freedom of speech and debates or proceedings in Parlyament ought not to be

impeached or questioned in any court or place out of Parlyament.

In Pepper v. Hart12 Lord Browne-Wilkinson offered a construction of *P.L. 76 Article 913

en route to his conclusion that there was no legal inhibition upon the courts, in a proper

case from looking at Hansard as an aid to the construction of main legislation. The Bill of

Rights was treated as a statute like any other. It has no primordial force. No doubt the

preservation of free speech in Parliament without the risk of civil or criminal penalty is so

vital a constitutional necessity that the courts--in contrast to the House's decision in

Anisminic --will continue hereafter to construe Article 9 so as to accord the widest latitude

to what Parliamentarians may say in the execution of their office. But the reach of Article

9, like that of any other statute, is for the courts to decide.14

Thus, save as regards the Queen in Parliament, there is in principle always jurisdiction in

the court to review the decisions of public bodies.

So the subject-matter of a putative judicial review cannot be consigned outside the court's

jurisdiction on the footing that the merits of the decision under challenge are politically

controversial. Not only that, however: the political nature of the case is no more a ground

for refusing relief as a matter of discretion than it is for denying the court'sjurisdiction. In

the national security context15 (and some others) it is of course true that the judges still

decline to go into the issues with the intrusive rigour that they would apply in other areas.

They do so partly out of a perception that in the security cases the very exercise would

publicise what must not be publicised partly because these are fields where delicate

decisions have to be made on a basis often of deep specialisation or of pure judgment

rather than fact-finding, on whose merits the searchlights of judicial review can, so it is

thought, illuminate little or nothing. There is certainly no judicial self-restraint on the

ground only that the subject-matter is politically controversial.

We may see, then, that a judge may readily arrive at a decision, and grant relief

accordingly, which, though not taken on the basis of any party political preference

entertained by him, may in the result amount to a blessing or a can of worms to the party

in government and judges frequently do so.
http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-

7/24/2019 john laws

5/20



So the subject-matter of a case offers no inhibition to legal adjudication on grounds of its

political content. It will of course be said, however, that the actual decisions made by the

courts in such cases cannot themselves be described as political decisions this is because

of what is a received axiom in our public law, that a judicial review challenge will not

engage the judge in a trial of the merits of the decision impugned. *P.L. 77 There is an

exception, which I propose for present purposes to leave out of account but which I should

identify it arises where the statute authorising the action which is challenged requires

some precedent condition to be established before the action can be taken: then, the judge

must find as a fact whether the condition is met. A well-known example concerns the

Secretary of State's power to remove illegal immigrants under Schedule 2 to the

Immigration Act 1971: where a proposed removal is challenged, the Secretary of State

must prove to the satisfaction of the judicial review court that the person in question falls

within the definition of illegal entrant in the statute.16

But most instances of discretionary power conferred by statute are not subject to such

prior conditions. In those cases, the judge cannot review the merits of what is done or

proposed to be done. He is confined to an examination of the legality of the decision, which

in turn will generally depend upon whether or not the decision-maker has transgressed one

or more of Lord Diplock's trilogy of rules in CCSU17 : illegality, irrationality and procedural

propriety. These are however no longer exhaustive, if they ever were: for my part I

consider that proportionality ought now to be regarded as a separate head of challenge.18

But, strictly for this part of my argument, the three traditional categories suffice to indicate

the broad nature of a conventional judicial review exercise.

It is no coincidence, no happenstance (as the Americans might say), that the public law

jurisdiction draws a line in principle between review on these three grounds and the

business of decision-making on the merits, as I shall seek to show and the difference

between the two, although regarded as elementary by public law practitioners, is not

always clearly understood.

The difference has nothing to do with the extent to which the reviewed body's decision is

controversial, whether in political terms or otherwise. It arises as a matter of definitionfrom the very nature of the public power respectively lying in the hands of the courts and

those whom they review. The paradigm of a public body subject to the public law

jurisdiction is one whose power is conferred by statute. The statute is logically prior to it

and by the constitution it is for the courts to police the statute. But they do not act under

the statute. They are altogether outside it. Their power is not derived from it nor,

ultimately, from any Act of Parliament. This state of affairs has two consequences. First,

the judges have to see that the power given by the statute is not transgressed by its

donee secondly, they have no business themselves to exercise powers conferred by it,precisely because they are not the donee. Hence the essence of the judicial review

jurisdiction. It vindicates the rule of law not only by confining statutory power within the

four corners of *P.L. 78 the Act, but also by ensuring that the statute is not usurped by
http://-/?-http://-/?-http://-/?-

7/24/2019 john laws

6/20



anyone--including the courts themselves.

So far this may appear no more than a standard account of the public law court's functions.

My purpose in giving it is first to demonstrate that the well-known limits upon the

jurisdiction have nothing whatever to do with problems about the judges embarking upon

political disputes. They are simply a function of the rule of law: the judges are no more

than anyone else entitled to exercise power which legally belongs to another. It would be

idle and misleading to describe this state of affairs in terms of any judicial avoidance of

political controversy.

Judicial creativity and political ideals

The next path I am to take is a little less clearly mapped. Lord Diplock's judicial review

criterion of illegality is plain enough: no subordinate body may exceed the express bounds

of its statutory power: that is, the power which on its proper construction the Act confers.

But what of the other heads of review, Wednesbury19 unreasonableness and procedural

unfairness? They are now as elementary as illegality. In the elaboration of these principles

the courts have imposed and enforced judicially created standards of public behaviour. But

the civilised imperative of their existence cannot be derived from the simple requirement

that public bodies must be kept to the limits of their authority given by Parliament. Neither

deductive logic nor the canons of ordinary language, which are the basic tools of statutory

construction, can attribute them to that ideal, since although their application may be

qualified by the words of any particular statute, in principle their roots have grown from

another seed altogether. In some formulations, it is true, they have purportedly been

justified by the attribution of an intention to the legislature that statutory decision-makers

should act reasonably and fairly but this is largely fictitious. In recent times, before Ridge

v. Baldwin20 it was not generally thought (to put it crudely) that administrative, non-

judicial, bodies owed such duties as to hear the other side. Before Padfield21 it was not

generally thought that it was an enforceable function of every statute conferring public

power that it only justified action to promote the distinct purposes of the Act, even though

the Act did not state them. Before the concept of legitimate expectation assumed the

status of a substantive legal principle (whose precise date may be nicely debated), it was

not generally thought that decision-makers should be prevented from departing from

previous assurances as to their actions without giving those affected an opportunity to

make representations. Wednesbury22 itself reaches back to older law but its fruition and

its maturity came 20 years and more after it was decided. It cannot be suggested that all

these *P.L. 79 principles, which represent much of the bedrock of modern administrative

law, were suddenly interwoven into the legislature's intentions in the 1960s and 70s and

onwards, in which period they have been articulated and enforced by the courts. They are,

categorically, judicial creations. They owe neither their existence nor their acceptance to

the will of the legislature. They have nothing to do with the intention of Parliament, save as

a fig-leaf to cover their true origins. We do not need the fig-leaf any more.23
http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-

7/24/2019 john laws

7/20



But my purpose with them is first to ask this question: judicial creations as they are,

should they be regarded as political ideals? In one sense they are certainly nothing less.

They are not morally neutral they are, as the philosopher R. M. Hare would say,

prescriptive24 they are about how powerful people ought to behave. Much of politics in

any ordinary sense of the term is about how powerful people ought to behave. It is not on

the face of it easy to see why this class of standards, created by the judges, should be

categorised as wholly apolitical while other classes, also concerned with the quality of

public decision-making, should be roundly and unarguably regarded as well within the

political sphere.

One thing is quite clear: if these public law rules may be described as political in nature,

there is no question of the judges repenting them on such grounds no question, either, of

anyone else doing so--unless I suppose there are a few diehards who think that public

bodies should be allowed to be unreasonable and unfair, perhaps on the grounds that

many of them, including of course the government, are democratically elected. But in fact

and in substance, these principles are accepted across the party political divide as an

uncontentious and necessary element in the conduct of public life in England. There are

many who say they do not go far enough. If the sinews of proportionality grow as strong in

the law as the other principles, I believe it will command a like acceptance.25

Let me now try to gather and express more tightly the effect of these reflections, as a

prelude to all that I have yet to say in the endeavour to *P.L. 80 penetrate the

relationship between the ideals of democracy and law. We have these following

propositions:

(1) The substantive principles of judicial review26 are judgemade, owing neither their

content nor their authority as law to the legislature.

(2) Yet they confine the scope within which discretionary decisions may be taken under

statute, even though on a bare reading of the Act the power conferred would have a

greater reach.

(3) These principles are not morally colourless--far from it. They constitute ethical ideals as

to the virtuous conduct of the state's affairs. It is essential to my theme (and anyway

important) to recognise the moral force of the basis on which control of public power is

effected by the unelected judges.

(4) The established limits of the jurisdiction are in essence set by the very same ideal

which has fuelled its growth: that all public bodies should keep within the power which the

law accords to them. Neither these limits, nor any other aspect of our public law as it

presently stands, can usefully be explained by reference to lines of demarcation drawn on

political grounds.

Distinctions between judicial and elective power
http://-/?-http://-/?-http://-/?-

7/24/2019 john laws

8/20



I may now pose directly the question whether these judicial ideals ought to be described as

in their nature political, though only to reformulate it, or to embark on a different and more

important inquiry, in a moment. I should say first that the more direct question: are they

political ideals is, I think, apt to promote conceptual confusion. The adjective political is

what some philosophers used to call a portmanteau word--rather like good. You may

have a good book, a good man, or (as Tom Stoppard said)27 a good bacon sandwich all

the word's uses share (at least) the idea of commendation, but things are good in different

senses. The notion which is central to issues or ideas which we might as a matter of

language call political is, I think, that in one way or the other they all concern the way in

which the state is to be run, the people are to be governed. In that sense the principles of

judicial review are undoubtedly political. But this tells us close to nothing. What in reality I

am in search of is a rigorous appraisal of the true distinctions between judicial and elective

power. Since, as I believe, the present reach of judicial review is *P.L. 81 not now

considered, in most quarters at least, to present or to threaten any unacceptable

encroachments upon the legitimate authority of governments or other elected bodies, this

exercise would very largely be of academic interest only, were the public law jurisdiction to

remain static but I do not think it will, nor should it. The true differences between judicial

and elective power are of the greatest importance if we are to entertain a respectable

theory as to the basis on which judicial review may hereafter develop--as I hope it does--

towards offering an explicit and systematic protection of constitutional rights. Might the

judges in the future, if they claim a greater jurisdiction to establish and insist upon

fundamental rights, affront the imperative of democracy? Might they stake a claim,

however well-intentioned, which transgresses the proper bounds of their unelected power?

What would be the position if they sought to review main legislation?

The true distinctions between judicial and elective power cannot be arrived at by a merely

factual account of what the judges do and what governments or Parliaments (or local

authorities) do. This is so because of the logical nature of an unwritten constitution.

Though there are of course established constitutional norms, some of considerable

antiquity, the absence of what I will call a sovereign text means that the legal distribution

of public power consists ultimately in a dynamic settlement, acceptable to the people,

between the different arms of government. It is not written in stone it is not even written

in paper. It cannot therefore be ascertained by reference to the pages of a book whose

authority is unquestioned, scriptural. The settlement is dynamic because, as our long

history shows, it can change and in the last three hundred years has done so without

revolution. In the end, it is not a matter of what is, but of what ought to be. The journey to

find it is a search for principle, not the unfolding of a rule book. Let me embark upon it.

Democracy and fundamental rights

As a matter of fundamental principle, it is my opinion that the survival and flourishing of a

democracy in which basic rights (of which freedom of expression may be taken as a

paradigm) are not only respected but enshrined requires that those who exercise
http://-/?-

7/24/2019 john laws

9/20



democratic, political power must have limits set to what they may do: limits which they are

not allowed to overstep. If this is right, it is a function of democratic power itself that it be

not absolute.

I will begin the task of justifying and explaining this position by saying a little about

fundamental rights.28 This is--fortunately--a subject much in vogue nowadays though

pleas to incorporate the ECHR are of course far from new. While, along with many others, I

would welcome incorporation, I am not concerned in this article merely to add my name to

the call it has repeatedly been made by voices with much greater *P.L. 82 authority, and

there is of course much literature on the subject.29 I will only say this: as is well known,

the idea of incorporation is beset by conceptual difficulties so long as we adhere to what I

believe to be the outdated, or perhaps misunderstood, notion of the sovereignty of

Parliament. What I am to address is not the maze of conundrums through which the

incorporators have to find a path, but rather the extent to which the concept of

fundamental rights ought in principle to affect the reach and length of democratic power--incorporation or no. I will do it by reference to freedom of expression. Other rights, which

in the compass of this lecture I will not discuss, would call for analogous, but adapted,

arguments.

I will start with the notion of extremism. Generally, I would say that an extremist opinion is

one which admits of no exceptions. Its hallmark is the claim to a monopoly of the truth. In

the party political sphere, extremism is thought to be the province of the far left and the

far right. But it cannot be defined in such terms extreme liberalism may lay as dead a

hand on freedom as the others. Its danger is that it may make intolerance and cowardice

respectable. A heartfelt conviction, for example, of the evils of racial or sexual prejudice

may all too easily lead to a call for the suppression of voices thought to extol them. 30 It

leads to the neo-fascist corruption of the language exemplified in what is called politically

correct speech. I should here make two connected points. The first is, I take it, as obvious

as it is unoriginal: the vice of such prejudices (or any other, for that matter) is no less a

vice only because its adherents are free to commend it and it may be as roundly and

rightly condemned by one who would not think of silencing its supporters as by another

who only approves the expression of opinions he finds congenial. The second, no less

obvious, is to notice the important distinction between the substance of an opinion held,

which may be thoroughly justified, and its putative imposition on others, which is generally

unjustified. I do not mean to say that one should not, with all the energy at one's

command, seek to persuade the holder of barbarous views to recant but to entertain the

notion that he can or should be compelled to do so is to treat him as a slave.

Extremism may be found in the substance of a base opinion but it may consist as surely in

a preparedness to suppress views at variance with an opinion which itself is essentiallydecent. In both, the claim to a monopoly of the truth is urged. The latter case, however,

carries the *P.L. 83 seeds of an insidious danger: it is that the very merits of the opinion

being promoted may serve to blow the trumpet of suppression louder, and to weaken the
http://-/?-http://-/?-http://-/?-

7/24/2019 john laws

10/20



resolve of any who insist that the holder of a vile view is entitled to have his say. All this,

of course, takes for granted the value to be attributed to free speech, about which I shall

have more to say. But the distinction between the two forms of extremism to which I have

pointed uncovers a deeper question, which engages the role of government and therefore

of the law. An individual citizen has little power to suppress the opinions of others. He may

be a petty tyrant in his home or at his work, but his spurious writ can never run very far. A

government, however, is a legally established hegemony its very function is to rule and

though it may exhort and encourage, it rules in the end by force of compulsory law.

Yet however pressing the force of law may be, it cannot, short of vindicating a process we

would recognise and condemn as brain-washing, itself exact a change of mind in any man.

Government may persuade, but the attempt to do so is a right it shares with the citizen,

not a prerogative it enjoys alone. It cannot enforce good opinions, save by obviously

unacceptable means. It cannot therefore be its legitimate task to try. It follows that in the

exercise of its true prerogative, which is the use of legal power, it is ineluctably committed

to the primacy of pluralism. Its power is circumscribed by the very fact that the citizen's

will is free.

The government's constituency is the whole body of such citizens and a democratic

government can have no remit but to act in what it perceives to be their best interests. It

may get it wrong, and let the people down. But it cannot knowingly do so, for that would

be to act in bad faith and no government can justify its own bad faith by pointing to the

fact that it was elected by the people. That would be to assert that the electorate endorsed

in advance the government's right deliberately to act against its interests, which is an

impossible proposition.

Thus the free will of every citizen is a premise of all the government's dealings with the

people, and so conditions its duty to act in good faith towards them. It cannot fulfil its duty

without recognising this but such a recognition entails the need to accord fundamental

rights, high among them the right of freedom of expression. This is first because, as I have

said elsewhere,31 freedom of expression is a corollary of the power of reason, for whose

possession the quality of free will is a necessary condition and secondly because man lives

in society, bound to communicate with fellows of his kind. The power of reason transforms

his capacity to do so, because it endows him with the gift of language. If the only

inhabitant of the Universe were a single individual, he would not speak, but grunt.

Whatever natural intelligence he might enjoy, he could only apply it to physical things. He

would have no basis on which to formulate moral principles, and no conception of rights or

duties. *P.L. 84 Indeed he would have no rights or duties. But the human situation is far

removed from such desolation society makes relationships inevitable and since its

denizens are free and rational, the very fact that they live in communion entails their

making judgments about how one should behave towards another. Nothing is more natural

to their condition and so to stifle free speech is to deny or frustrate humanity's very

distinguishing characteristic.
http://-/?-

7/24/2019 john laws

11/20



Any but the crudest society will be ordered, will have, in whatever form, a government. Its

citizens will make judgments about the government. The government can no more deny

their right to do so, without also denying their nature as free and rational beings, than it

can deny their right to make judgments upon each other. But more than this, the

government cannot be neutral about free speech. If it is not to be denied, it must be

permitted there is no room for what the logicians would call an undistributed middle32

and if it must be permitted, it must be entrenched and protected, since its vindication is

not a matter of legitimate political choice but an axiom of any community of free human

beings. In the end the government's duty to good faith requires it to accord this

fundamental freedom to the people.

The imperative of higherorder law

Now it is only by means of compulsory law that effective rights can be accorded, so that

the medium of rights is not persuasion, but the power of rule: the very power which, if

misused, could be deployed to subvert rights. We therefore arrive at this position: the

constitution must guarantee by positive law such rights as that of freedom of expression,

since otherwise its credentials as a medium of honest rule are fatally undermined. But this

requires for its achievement what I may call a higher-order law: a law which cannot be

abrogated as other laws can, by the passage of a statute promoted by a government with

the necessary majority in Parliament. Otherwise the right is not in the keeping of the

constitution at all it is not a guaranteed right it exists, in point of law at least, only

because the government chooses to let it exist, whereas in truth no such choice should be

open to any government.

The democratic credentials of an elected government cannot justify its enjoyment of a right

to abolish fundamental freedoms. If its power in the state is in the last resort absolute,

such fundamental rights as free expression are only privileges no less so if the absolute

power rests in an elected body. The byword of every tyrant is My word is law a

democratic assembly having sovereign power beyond the reach of curtailment or review

may make just such an assertion, and its elective base cannot immunise it from playing

the tyrant's role.

Since my argument may appear to some to amount to what Sedley J. *P.L. 85 recently

described,33 in a review of a book to which I contributed,34 as a plea for judicial

supremacism, and since as I have made clear I consider that the power of democratically

elected bodies must be subject to limits, I must temper this discussion with what no doubt

is obvious enough, namely an emphatic insistence on the vital necessity of democratic

institutions of government. A people's aspiration to democracy and the imperative of

individual freedoms go hand in hand. Without democracy the government is by definition

autocratic though it may set just laws in place, and even elaborate a constitution

providing for fundamental rights, there is no sanction for their preservation save

revolution. While (for reasons I have not the time to elaborate) I do not think the notion of
http://-/?-http://-/?-http://-/?-

7/24/2019 john laws

12/20



self-determination is the best model to vindicate the pressing moral claims of democracy

so far as they concern the individual voter, nothing could be more elementary than that the

power of government, to stay in office and make through Parliament compulsory laws for

the obedience of the people, does and must depend utterly on the popular vote. But the

sanction of the polling-booth is not merely a voice at the government's shoulder, a telling

whisper that if it makes laws which do not more or less appeal to the public it will be

thrown from office. It represents the legal and moral fact that the power of rule is

bestowed at the people's choice and it confers on the measures passed by government a

crucial moral authority. Since in the last resort the government rules by consent, the

source of public power is not the strong arm of the ruler, but the people themselves.

Even so, the fundamental sinews of the constitution, the cornerstones of democracy and of

inalienable rights, ought not by law to be in the keeping of the government, because the

only means by which these principles may be enshrined in the state is by their possessing

a status which no government has the right to destroy. I have already argued this position

in relation to fundamental individual rights now I assert it also as regards democracy

itself. It is a condition of democracy's preservation that the power of a democratically

elected government--or Parliament--be not absolute. The institution of free and regular

elections, like fundamental individual rights, has to be vindicated by a higher-order law:

very obviously, no government can tamper with it, if it is to avoid the mantle of tyranny

no government, therefore, must be allowed to do so.

But this is not merely a plea to the merits of the matter, which can hardly be regarded as

contentious the need for higher-order law is dictated by the logic of the very notion of

government under law. If we leave on one side a form of society in which a single ruler

rules only by the strength of his arm, and where the only law is the ruler's dictat, we can

see that any government holds office by virtue of a framework of rules. The application of

the rules determines what person or party is *P.L. 86 entitled (or, under some imaginable

systems, obliged) to become the government. This is a necessary, not a contingent, truth,

since the institution of government is defined by the rules were it otherwise, we are back

to the case we have proposed to set aside. Richard Latham of All Souls said this over 40

years ago35 :

When the purported sovereign is anyone but a single actual person, the designation of him

must include the statement of rules for the ascertainment of his will, and these rules, since

their observance is a condition of the validity of his legislation, are Rules of Law logically

prior to him.

We may see the same logic at work in other texts. Here is Sir William Wade, in an article in

1955,36 citing Salmond on Jurisprudence37 as follows:

It [Parliamentary sovereignty] is the law because it is the law, and for no other reason that

it is possible for the law itself to take notice of. No Statute can confer this power upon

Parliament, for this would be to assume and act on the very power that is to be conferred.
http://-/?-http://-/?-http://-/?-

7/24/2019 john laws

13/20



The reasoning is the same as Latham's: the notion of sovereignty is logically prior to the

Acts of Parliament themselves. Wade also says:

What Salmond calls the ultimate legal principle is therefore a rule which is unique in

being unchangeable by Parliament--it is changed by revolution, not by legislation it lies in

the keeping of the courts, and no Act of Parliament can take it from them. This is only

another way of saying that it is always for the courts, in the last resort, to say what is a

valid Act of Parliament and that the decision of this question is not determined by any rule

of law which can be laid down or altered by any authority outside the courts. It is simply a

political fact.

The importance of this passage consists in the two propositions (a) that the sovereignty of

Parliament is in the keeping of the courts, and (b) that it is a political fact. The first

implies that the legal source of the doctrine of sovereignty is in the judges. It is worth

noticing that by and large recent generations of judges have assumed the truth of the

doctrine, rather than held it to be so after adversarial argument in which the point has

been contested. The second--the political fact--though not identical with it, calls up the

formulation which I have ventured as to the basis on which state power is distributed in the

unwritten constitution: it *P.L. 87 is by means of a dynamic settlement between the legal

organs of government.

The thrust of this reasoning is that the doctrine of Parliamentary sovereignty cannot be

vouched by Parliamentary legislation a higher-order law confers it, and must of necessity

limit it. Thus it is not, and cannot be, established by the measures which set in place the

constitutional reforms of the late seventeenth century nor by any legislation. Indeed Lord

Browne-Wilkinson's construction of Article 9 of the Bill of Rights 1688,38 to which I have

already referred, means only that no impediment may be placed on Parliamentary

processes, such as, for instance, by a claim against an MP for defamation it is no more nor

less than a rule of absolute legal privilege. It has nothing to do with the question whether

statutes in proper form are by law beyond challenge. Its effect is that no constraint of any

kind is to be imposed on the freedom of Parliament to debate whatever it likes.39 That is of

course a vital principle, and the courts have been at pains to respect what they regard as

Parliament's rights.40 But it says nothing about the legal supremacy of legislation the

existence of a power in the courts to strike down a statute as inconsistent with a

fundamental right or, were it to happen, with democracy itself, does not in any sense touch

the freedom of members of either House, uninhibited by any law, to say whatever they

choose during a Bill's passage.

So the rules which establish and vindicate a government's power are in a different category

from laws which assume the existence of the framework, and are made under it, because

they prescribe the framework itself. In states with written constitutions the rules are of

course to be found in the text of the constitution, which, typically, will also contain

provisions as to how they may be changed. Generally the mechanisms under which the
http://-/?-http://-/?-http://-/?-

7/24/2019 john laws

14/20



framework may be changed are different from those by which ordinary laws, not part of

the framework, may be repealed or amended and the mechanisms will be stricter than

those in place for the alteration of ordinary law.

But in Britain the rules establishing the framework possess, on the face of it, no different

character from any other statute law. The requirement of elections at least every five years

may in theory be altered by amending legislation almost as readily--though the almost is

important--as a provision defining dangerous dogs. The conventions under which cabinet

government is carried on could in theory be changed with no special rules at all, as could

any of the norms by which the government possesses the authority to govern. The rules by

which the power of a government is conferred are in effect the same as the rules by which

*P.L. 88 the government may legislate upon other matters after it has gained power. In

the end the sanction for the maintenance of democracy is in point of law no greater than

the sanction for the maintenance of the dangerous dogs definition. But the rules for

extending the life of a parliament are not quite the same, and the extent to which they are

not is itself something of an irony in face of the view that democratic institutions are the

best saviours of our freedoms: the strict curtailment effected by the Parliament Acts upon

the power of the House of Lords to reject prospective legislation passed by the Commons,

so as to define the authority of the upper House as a delaying function only, has by section

2(2) of the Parliament Act 1911 no application to a Bill containing any provision to extend

the maximum duration of Parliament beyond five years. Here, then the unelected peers

possess a function conferred for the protection of democracy. This aside, we have not so

far established in the British state a higher-order law but this is self-contradictory, unless

we are to say that the power of Parliament is not legal power at all.

Before proceeding further I should say something of the impact of the law of the European

Union upon the traditional Anglo-Saxon41 perception of Parliamentary sovereignty, which

might be said to have been fundamentally altered by the decisions in Ex p. Factortame42

and Ex p. Equal Opportunities Commission.43 In these cases the House of Lords held that

the High Court was competent to give relief, whether by interim injunction44 or final

declaration,45 whose effect would be to disapply main United Kingdom legislation as being

incompatible with the law of the Union. Thus in the European context the courts, prompted

by the *P.L. 89 E. C.J., have taken the power to supervise primary legislation passed by

the Queen in Parliament. For my purposes the crucial piece of reasoning is that of Lord

Bridge in the first Factortame case where he said46 :

By virtue of section 2(4) of the Act of 1972 [the European Communities Act] Part II of the

Act of 1988 is to be construed and take effect subject to directly enforceable Community

rights ... This has precisely the same effect as if a section were incorporated in Part II of

the Act of 1988 which in terms enacted that the provisions with respect to registration of

British fishing vessels were to be without prejudice to the directly enforceable Community

rights of nationals of any member state of the EEC.
http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-

7/24/2019 john laws

15/20



The effect is that section 2(4) of the European Communities Act falls to be treated as

establishing a rule of construction for later statutes, so that any such statute has to be

read (whatever its words) as compatible with rights accorded by European law. Sir William

Wade regards this development as revolutionary, because in his view it represents an

exception to the rule that Parliament cannot bind its successors.47 But I do not think that is

right. It is elementary that Parliament possesses the power to repeal the European

Communities Act in whole or in part (I leave aside the political realities) and the most that

can be said, in my view, is that the House of Lords' acknowledgement of the force of

European law means that the rule of construction implanted by section 2(4) cannot be

abrogated by an implied repeal. Express words would be required. That, however, is hardly

revolutionary: there are a number of areas where a particular statutory construction is only

likely to be accepted by the courts if it is vouchsafed by express provision.48 Although

Factortame and EOC undoubtedly demonstrate what may be described as a devolution of

legislative power to Europe, it is no true devolution of sovereignty. In legal (though

certainly not political) terms, the organs of European legislation may in truth be described,

for so long as the Act of 1972 remains on the statute book, as Parliament's delegates the

law of Europe is not a higher-order law, because the limits which for the time being it sets

to the power of Parliament are at the grace of Parliament itself. For these reasons I do not

believe that our membership of the Union, or its legal ramifications, has any fundamental

bearing on my thesis in this paper, and I may return to the mainstream of the argument.

*P.L. 90 I do not of course suggest that there are circumstances presently foreseeable in

which an elected government might seek to prolong its own existence by subverting the

people's right to vote, or otherwise to effect fundamental and undemocratic changes in the

nature of our governmental institutions. My thesis is that the citizen's democratic rights go

hand in hand with other fundamental rights the latter, certainly, may in reality be more

imaginably at risk, in any given set of political circumstances, than the former. The point is

that both are or should be off limits for our elected representatives. They are not matters

upon which, in a delegated democracy--a psephocracy--the authority of the ballot-box is

any authority at all. It is a premise of elective government, where free people are the

voters, that these principles be observed by whoever is elected.

The separation of powers in the British constitution

Professor Robert Stevens, in his recent book The Independence of the Judiciary: The View

from the Lord Chancellor's Office,49 says:

Nothing underlines the atheorectical nature of the British Constitution more than the

casualness with which it approaches the separation of powers.

Sedley J., in his review of the book50 (he is a great reviewer), ascribes to this what he calls

a hint of transatlantic self-satisfaction. But it represents an important truth about the

nature of state power in Britain. It is characteristic of the intellectual insouciance which
http://-/?-http://-/?-http://-/?-http://-/?-

7/24/2019 john laws

16/20

7/24/2019 john laws

17/20



the Monarch but by others in Her name.

However the same convention means of course that the sovereign *P.L. 92 power in the

state is effectively in the hands of an elected body. Those old battles have long ago been

won. They have, however, been won at a certain cost, namely the suppression to a

considerable degree of the power of Parliament as a body independent of the Executive.

What has in crude terms happened since the seventeenth century is that there has been a

trade-off between two ideals: one is the notion that Parliament should be sovereign the

other is that the Executive government should be democratically accountable. It has been

done by clothing the Executive, previously autocratic and unaccountable, with the

legitimacy of Parliament.

The power which is generally enjoyed by the Executive over the Legislature is so great that

it loosens the ties between the people and their rulers. The benign force of democracy is

diminished. While it rules, the Executive enjoys great autocratic power which is only

indirectly vouchsafed by the elective process. But--and this is the emphasis of my position-

-even if Parliament enjoyed a true hegemony over the Executive, still its rule should not in

the last resort be absolute: still a higher-order law would be needed for the entrenchment

of constitutional rights and the protection of democracy itself.

Conclusion

We may now come full circle, and after this long discussion I can identify what seems to

me to be the essence of the difference between judicial and elective power. The latter

consists in the authority to make decisions of policy within the remit given by the

electorate this is a great power, with which neither the judges nor anyone else have any

business to interfere. This is the place held by democracy in our constitution. It is the place

of government. Within it, Parliament, even given its present unsatisfactory relationship

with the Executive, is truly and totally supreme. It possesses what we may indeed call a

political sovereignty. It is a sovereignty which cannot be objected to, save at the price of

assaulting democracy itself. But it is not a constitutional sovereignty it does not have the

status of what earlier I called a sovereign text, of the kind found in states with written

constitutions. Ultimate sovereignty rests, in every civilised constitution, not with those who

wield governmental power, but in the conditions under which they are permitted to do so.

The constitution, not the Parliament, is in this sense sovereign. In Britain these conditions

should now be recognised as consisting in a framework of fundamental principles which

include the imperative of democracy itself and those other rights, prime among them

freedom of thought and expression, which cannot be denied save by a plea of guilty to

totalitarianism.

For its part judicial power in the last resort rests in the guarantee that this framework willbe vindicated. It consists in the assurance that, however great the democratic margin of

appreciation (to use Strasbourg's language) that must be accorded to the elected arm of

the state, the bed*P.L. 93 rock of pluralism will be maintained. We have no other choice.

7/24/2019 john laws

18/20



1.

The dynamic settlement between the powers of the state requires, in the absence of a

constitutional scripture, just such a distribution of authority. The judges are rightly and

necessarily constrained not only by a prohibition against intrusion into what is Parliament's

proper sphere, but by the requirement, and the truth, that they have in their duty no party

political bias. Their interest and obligation in the context of this discussion is to protect

values which no democratic politician could honestly contest: values which, therefore, may

be described as apolitical, since they stand altogether above the rancorous but vital

dissensions of party politicians. The judges are constrained also, and rightly, by the fact

that their role is reactive they cannot initiate all they can do is to apply principle to what

is brought before them by others. Nothing could be more distinct from the duty of political

creativity owed to us by Members of Parliament.

Though our constitution is unwritten, it can and must be articulated. Though it changes,

the principles by which it goes can and must be elaborated. They are not silent they

represent the aspirations of a free people. They must be spoken and explained and,

indeed, argued over. Politicians, lawyers, scholars, and many others have to do this.

Constitutional theory has, perhaps, occupied too modest a place here in Britain, so that the

colour and reach of public power has not been exposed to a glare that is fierce enough. But

the importance of these matters is so great that, whatever the merits or demerits of what I

have had to say, we cannot turn our backs on the arguments. We cannot risk the future

growth without challenge of new, perhaps darker, philosophies. We cannot fail to give

principled answers to those who ask of the nature of state power by what legal alchemy, in

any situation critical to the protection of our freedoms, the constitution measures the

claims of the ruler and the ruled. The imperatives of democracy and fundamental rights do

not only demand acceptance they demand a vindication that survives any test of

intellectual rigour. There must always be voices to speak for them, in and out of the law.

By their very nature, these imperatives require also that their enemies be given full rein to

express their views. It means that the defence of these values cannot be assumed, but

must always be asserted. There is no point at which there is nothing more to say there is

no moment at which they are indefensible, no imaginable circumstances in which to

consign them to silence, like the oracle at Delphi when Julian the Apostate sent to it in the

fourth century AD:

Tell ye the King, the carven hall is fallen in decay

Apollo hath no chapel left, no prophesying bay,

No talking spring. The stream is dry, and had so much to say.

You will forgive, I hope, this Grecian flourish at the end.

P.L. 1995, Spr, 72-93

Ex p. Brind [1991] 1 A.C. 696.
http://-/?-

7/24/2019 john laws

19/20



2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

23.

24.

25.

26.

27.

28.

29.

30.

Ex p. Bugdaycay [1987] A.C. 514.

Ex p. Hammersmith [1991] 1 A.C. 521.

Ex p. Fewings, (1994) 92 L.G.R. 674 And see p. 27 supra.

Ex p. Avon [1991] 1 A.C. 558. This decision of the Court of Appeal was concerned with the questionwhether the court possessed the power to grant a stay against the Crown (and has been overtaken bythe decision of the House of Lords in M v. Home Office [1993] 3 W.L.R. 433), but it arose in thecontext of a substantive challenge to a decision by the Secretary of State to approve a school's grant-maintained status.

Ex p. Greenpeace Ltd [1994] 1 W.L.R. 570.

Ex p. Rees-Mogg [1994] Q.B. 552 see R. Rawlings [1994] P.L. 254, 367.

[1985] A.C. 374.

[1994] 2 W.L.R. 101.

[1969] 2 A.C. 147.

However, there remains great difficulty in seeing how such ouster clauses and the rule of law canshare the same bed. I have offered some discussion of the problems in Chapter 4 of Supperstone andGoudie,Judicial Review (1992), especially at 61-67.

[1993] A.C. 593 and see D. Oliver [1993] P.L., 5.

at 638G-639A.

I am not myself convinced that if a Member of Parliament were motivated by reasons of actualpersonal malice to use his position so as to defame, in the course of debate, an individual outside

Parliament he should not as a result be subject to the ordinary law of defamation and Article 9 couldreadily be construed conformably with such a state of affairs. There is an analogy with the questionwhether judges should enjoy an absolute legal immunity for what they do in the course of their office(as to which there is an interesting discussion by Sedley J. in the London Review of Books, vol. 16, no.7). And see Marshall, Impugning Parliamentary Impunity [1994] P.L. 509.

as exemplified in CCSU.

See Ex p. Khawaja [1984] A.C. 74.

[1985] A.C. 374 at 410-411C.

See my article Is the High Court the Guardian of Fundamental Constitutional Rights? [1993] P.L. 59,at 71-75.

Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 Q.B. 223.

[1964] A.C. 40.

Padfield v. Minister of Agriculture [1968] A.C. 997.

[1948] 1 Q.B. 223.

It seems only fair to warn the reader--if warning were needed--that the views expressed in thisparagraph are at variance with Sir William Wade's opinion that the basis of the court's jurisdiction toreview administrative action, at least where it is taken by a statutory delegate (typically a Minister), isthe doctrine of ultra vires. A full discussion of the issues that divide us lies, I fear, beyond thereasonable scope of this article for Wade's position see Administrative Law (7th ed. 1994) pp. 41ff.Contrast P. P. Craig,Administrative Law (3rd ed. 1994) pp. 12ff.

The Language of Morals (1952) and Freedom and Reason (1963).

In The purpose and Scope of Judicial Review, one of the papers presented at a conference at theUniversity of Auckland in February 1986 and published inJudicial Review of Administrative Action inthe 1980s (OUP and the Legal Research Foundation Inc. 1986), Sir Gerard Brennan said this (p.18):The political legitimacy of judicial review depends, in the ultimate analysis, on the assignment to

the Courts of that function by the general consent of the community. The efficacy of judicial reviewdepends, in the ultimate analysis, on the confidence of the general community in the way in which theCourts perform the function assigned to them. Judicial review has no support other than publicconfidence.

This phrase appears in the title of Jowell and Lester's piece, Beyond Wednesbury : SubstantivePrinciples of Judicial Review [1987] P.L. 368. Although I do not agree with the approach taken by theauthors to the part which the European Convention of Human Rights should play in our law (see Isthe High Court the Guardian of Fundamental Constitutional Rights? [1993] P.L. 59), the article is astimulating text for anyone interested in the future development of public law.

InJumpers, whose alchemy of logic and hilarity was brilliantly put across in the first production, withSir Michael Hordern and Diana Rigg.

Some of my views are to be found in more expanded form in Is the High Court the Guardian ofFundamental Constitutional Rights? [1993] P.L. 59.

Anyone interested in it ought not to miss Lord Lester's 1994 Paul Sieghart Memorial Lecture, TakingHuman Rights Seriously.

Provisions such as that contained in section 18 of the Public Order Act 1986, which criminalises theuse of threatening, abusive or insulting words or behaviour which are either intended or likely to stirup racial hatred, want watching. It was enacted to assault one of society's baser vices but there is afine line between promoting racial tranquillity and depriving those with evil opinions of their right tofree expression. No doubt there is a distinction between discouraging racial hatred in the community,
http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-

7/24/2019 john laws

20/20


31.

32.

33.

34.

35.

36.

37.

38.

39.

40.

41.

42.

43.

44.

45.

46.

47.

48.

49.

50.

51.

52.

and the suppression of racialist views but it is uncomfortably tenuous, not least since the crime mayconsist in insulting words merely intended to stir up racial hatred.

Judicial Remedies and the Constitution (1994) 57 M.L.R. 213 at 226.

Compare St Matthew's Gospel, Ch. 12 v. 30: He that is not with me is against me.

[1993] P.L. 543, at 544.

Supperstone and Goudie,Judicial Review (1992).

The Law and the Commonwealth (1949) p. 523. R. F. V. Heuston, in the 2nd ed. of his Essays inConstitutional Law (1964) (p. 7), described this work as the most brilliant contribution to theliterature of English constitutional law since Dicey.

The Basis of Legal Sovereignty [1955] C.L.J. 172.

11th ed. p. 137.

In Pepper v. Hart [1993] A.C. 593 at 638G-639A.

The authorities show that the law accords to each House of Parliament an absolute right to regulate itsown internal proceedings: see for example Bradlaugh v. Gossett (1884) 12 Q.B.D. 271.

As is evident from the remarks of Lloyd LJ in Ex p. Rees-Mogg [1994] Q.B. 552 at 561A-D.

I use the term advisedly: some materials suggest at least the seeds of a less monolothic approach inScotland--see for example MacCormick v. Lord Advocate 1953 SC 396per Lord President Cooper atpp. 412-413. The United Kingdom Parliament dates only from May 1, 1707, when the Kingdoms ofScotland and England were merged by the Treaty of Union, ratified by Acts passed in the same termsby both national Parliaments. There are interesting questions, into which I cannot go here, as to thestatus of these Acts, which might be said to represent a form of higher-order law vis--vis the

Parliament of the United Kingdom. Given Article 19 of the Act of Union (which I will not set out), mightit be said that the United Kingdom Parliament lacks the legal power to abolish the Court of Session inEdinburgh? (I hope so.) I should say that these brief reflections have been prompted by a paper,which Sir Thomas Bingham MR was kind enough to send me, given by Lord Hope at the Anglo-American Legal Exchange 1994 and entitled: The Constitutional Position of Scotland within the UnitedKingdom--the Treaty of Union and the European Union, which so far as I am aware has not so farbeen published.

[1990] 2 A.C. 85 and [1991] 1 A.C. 603. Factortame was concerned with the compatibility orotherwise of provisions contained in Part II of the Merchant Shipping Act 1988 with Community Law.

[1994] 2 W.L.R. 409.

As in Ex p. Factortame (No. 2) [1991] 1 A.C. 603, after the European Court of Justice had ruled,following a reference made under Article 177 of the Treaty of Rome in the first Factortame case[1990] 2 A.C. 85, that no doctrine of national law could of itself prohibit such an injunction.

As in Ex p. EOC [1994] 2 W.L.R. 509, in which it was declared that the threshold provisions in theEmployment Protection (Consolidation) Act 1978 were incompatible with Article 119 of the Treaty ofRome and relevant Council Directives (and thus of no legal effect).

[1990] 2 A.C. 85 at 140B-C.

Administrative Law, (7th ed. 1994) pp. 30-31 c.f. Craig,Administrative Law, (3rd ed. 1994) pp. 188-193.

As where a statute is said to exact taxes, impose criminal liability, or to have retroactive effect. Suchinstances of course, have nothing to do with the doctrine of implied repeal. But I do not see why thecourts should not hold in a given case that the content of earlier legislation is such that it can only berepealed expressly. No doubt that is precisely what would happen if, for example, an attempt weremade to repeal the Habeas Corpus Acts but it could not be suggested that a judicial insistence onexpress words effected a sea-change in the doctrine of sovereignty. The principle that Parliament canmake and unmake any legislation whatever would be quite untouched. See A. W. Bradley, J. L. Jowelland D. Oliver (eds) The Changing Constitution (3rd ed. 1994) at pp. 101-105.

1993.

In the London Review of Books, Vol. 16 No. 7.

Though it was in 1976 that Lord Hailsham coined the phrase elective dictatorship.

In a letter published in the Independent on October 20, 1994 Earl Russell said:What must be changedif we are to have genuinely constitutional government is the power of Parliament to do whatever itlikes But he went on: Regretfully, I have come to the conclusion that this cannot be done inEnglish law The only power capable of controlling Parliament, and therefore giving us genuinelyconstitutional government, is the European Union. This is because, in the European Communities Act1972, Parliament has so willed it. This is the only reason for which English judges can ever control anAct of Parliament His Lordship does not acknowledge that, on his own reasoning, the power ofEuropean law is no more than a function of Parliament's power and it has not occurred to him thatthe judges may not be powerless to take other initiatives in the name of constitutional government.

2015 Sweet & Maxwell and its Contributors
http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-http://-/?-

john laws

Documents