John Laws

10/11/2015
Delivery | Westlaw UK
Public Law
1995
Law and democracy

JohnLaws
Subject:Constitutionallaw.Otherrelatedsubjects:Administrativelaw
Keywords:ConstitutionallawExecutivepowerJudiciaryPolitics
*P.L. 72 In 406B.C., towards the end of the Peloponnesian War, the Athenians were
victoriousinaseabattleatArginusae,tothesouthofLesbos.But25Athenianshipshad
beenlost,withtheircrews.Anorthwind,ofthekindthatstilltodayblowsverystrongin
those beautiful but unpredictable waters, had hindered any rescue. In Athens, still
governedbyitsdirectdemocracy,theeightcommanderswereblamed.Intheirturnthey
blamed 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
havebeenentitledtohavehisseparatecasejudgedonitsmerits.Amotionwasbroughtto
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.Theywereintimidatedbythepeople,thedemocraticvoice.Therewerethreatsof
impeachmentandarrest.Thepresidingcommitteegaveway.Theeightgeneralsweretried
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
philosopherSocrates,hadstoodoutagainsttheillegalandunjustprocedureforwhichthe
peoplebayed,althoughinvain.AfterwardstheAtheniansrepented.Theyknewthatwhat
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,nodoubt,donotliketoberemindedofdemocracy'sfailings.
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
twentiethcenturyEngland.But,despitetheshameofArginusae'saftermath,thisisatime
at which to pay tribute to Athens: the year 1994 is an anniversary of democracy: 2500
yearsago,*P.L.73Cleisthenesestablishedthereformswhichsetinplacethedemocratic
constitutionunderwhichthoseextraordinaryachievementsinthearts,inpoliticalthought,
in drama, architecture, and philosophy were accomplished or inaugurated in that small
citystate.Ishallbesayingthatademocraticconstitutionisintheendundemocraticifit
gives all power to its elected government at the same time democratic institutions are a
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necessarythoughnotsufficientconditionfortheestablishmentoffundamentalfreedoms.
We should not forget, not least in the welter of presentday accusations against the
modernGreekstate,thattheAtheniansinventeddemocracy.
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
constitutionatatimewhenmanyofitsfacetsareincreasinglysubjecttocriticalscrutiny.
Judges and politics

ThetemplateforthisarticlewastheannualPublicLawProjectlecturewhichIgaveinthe
summerof1994withthetitleLawandPoliticsNogoAreasforJudges?.Thetitleisapt
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
constitutionallaw.
IshouldattheoutsetmakeitclearthatIamnotconcernedwithwhattheEnglishjudges
areoroughttobeentitledtosayoutofcourt.Asregardsthat,thestrictnessoftheearlier
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
sensibledecisionsforthemselvesaboutwhetherandinwhattermstotalktothemediaor
otherwiseexpresstheirviewsoutofcourt.Itisbynomeansmypurposeheretoengagein
thedegreeofeffronterytomycolleaguesonthebench,andforthatmattertoothersalso,
which would be implicit in my pontificating about how judges generally should approach
suchquestions.WhatIamconcernedwithisthepresentandfuturestateofthelaw.
Next, it is necessary to dispose of the confusion and loose thinking that lies behind the
propositionthatthejudgesarenotconcernedwith*P.L.74politicalquestions.Itseems
tomethattherehasbeenverylittlerigorousreasoningastowhatismeantbythis.Atone
levelitisanobvioustruth:nojudgeshoulddecideaquestionbeforehimaccordingtohis
ownpartypoliticalopinionbutthatmeansonlythis,thatheshouldnotfavouraparticular
resolution of a case because it would be convenient or helpful to the party for which, at
electiontime,heproposestovoteintheprivacyoftheballotbox.Thisisnomorethana
jejunetruthifajudgewereseentofavouraparticularpartyassuchhewouldofcourse
loseallclaimtoimpartiality.Itisnomorethananinstanceoftheruleagainstbias.Even
outside court, a judge should no doubt appear to favour no political party, lest his extra
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curialopinionsbeperceivedtoinfecthisdecisionsincourt.
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
principlesabouthowthestateshouldberun,andinthatsensemaybesaidtobepolitical
principles. The difficulty is that the term politics and its cognates are ambiguous they
maybetakentoreferonlytopartypolitics,ortobroaderissues.Ifoneacceptsforpresent
purposes the more limited sense of the term, then it is of course uncontentious that no
judgeisconcernedwithpoliticalquestions.ButasIhavesaidthisestablishesonlythatthe
judge should entertain no bias on personal grounds. This obvious fact has nothing to do
withwhatIhavetosay.
Letmenextidentifyasenseinwhichitismanifestlyfalsethatthejudgesdonot,orshould
not,engageinissueswhichareatleastconcernedwithpoliticalquestions.Itariseswithin
the territory of modern judicial review: within that jurisdiction the judges do, and must,
adjudicateincaseswhichinvolvequestionsofacutepoliticalcontroversy.Thebanonviva
vocebroadcastsbyterroristsympathisers1therightsofpersonsclaimingrefugeestatus2
local government finance3 a local authority's ban on hunting across its land4 grant
maintainedschools5thedisposalofnuclearwaste6thegovernment'sdecisiontoratify
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
uponwhosemeritsthepoliticians(andothers)areinrancorousdisagreement.
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 subjectmatter renders them unfit for judicial determination.
Such a consideration is, first, irrelevant to the reach of the judge's jurisdiction. We now
possessajurisdictioninwhicheverypublicbodyisinprinciplesubjecttothesupervisionof
thecourtasregardseverydecisionitmakes.Theonlytrueexception,inthepresentstate
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
CCSU8about national security, diplomatic relations with foreign sovereign states, and so
forth, only describe cases where it is thought (rightly or wrongly) that an intrusive
jurisdictioncannotsensiblybeexercised,notcaseswherethereisnojurisdictionatall.The
questionleftopeninCCSUwhether judicial review might go to the direct exercise of the
RoyalprerogativehasbeenconcludedatDivisionalCourtlevelbyExpBentley9in favour
oftheexistenceofsuchajurisdiction.
Otherexceptionsmightbethoughttoconsistinthosecaseswherestatutehasapparently
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
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Lordsfoundthemeanstoupholdthecourt'sjurisdictionandthustheruleoflawdespite
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
logicallypriortothecourt'spowerandthusinpartatleastdefinesthatpower.Whenever
the bite of an exclusory provision is challenged, the issue will always be one of statutory
construction,andtheconstructionofstatutesisalwaysandentirelywithinthekeepingof
thecourts.ThisistrueevenofArticle9oftheBillofRights1688:
the freedom of speech and debates or proceedings in Parlyament ought not to be
impeachedorquestionedinanycourtorplaceoutofParlyament.
InPepperv.Hart12LordBrowneWilkinsonofferedaconstructionof*P.L.76Article913
en route to his conclusion that there was no legal inhibition upon the courts, in a proper
casefromlookingatHansardasanaidtotheconstructionofmainlegislation.TheBillof
Rights was treated as a statute like any other. It has no primordial force. No doubt the
preservationoffreespeechinParliamentwithouttheriskofcivilorcriminalpenaltyisso
vital a constitutional necessity that the courtsin contrast to the House's decision in
AnisminicwillcontinuehereaftertoconstrueArticle9soastoaccordthewidestlatitude
towhatParliamentariansmaysayintheexecutionoftheiroffice.ButthereachofArticle
9,likethatofanyotherstatute,isforthecourtstodecide.14
Thus, save as regards the Queen in Parliament, there is in principle always jurisdiction in
thecourttoreviewthedecisionsofpublicbodies.
Sothesubjectmatterofaputativejudicialreviewcannotbeconsignedoutsidethecourt's
jurisdiction on the footing that the merits of the decision under challenge are politically
controversial.Notonlythat,however:thepoliticalnatureofthecaseisnomoreaground
forrefusingreliefasamatterofdiscretionthanitisfordenyingthecourt'sjurisdiction.In
thenationalsecuritycontext15(and some others) it is of course true that the judges still
declinetogointotheissueswiththeintrusiverigourthattheywouldapplyinotherareas.
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 factfinding, on whose merits the searchlights of judicial review can, so it is
thought, illuminate little or nothing. There is certainly no judicial selfrestraint on the
groundonlythatthesubjectmatterispoliticallycontroversial.
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
entertainedbyhim,mayintheresultamounttoablessingoracanofwormstotheparty
ingovernmentandjudgesfrequentlydoso.
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Sothesubjectmatterofacaseoffersnoinhibitiontolegaladjudicationongroundsofits
politicalcontent.Itwillofcoursebesaid,however,thattheactualdecisionsmadebythe
courtsinsuchcasescannotthemselvesbedescribedaspoliticaldecisionsthisisbecause
of what is a received axiom in our public law, that a judicial review challenge will not
engagethejudgeinatrialofthemeritsofthedecisionimpugned.*P.L.77 There is an
exception,whichIproposeforpresentpurposestoleaveoutofaccountbutwhichIshould
identify it arises where the statute authorising the action which is challenged requires
someprecedentconditiontobeestablishedbeforetheactioncanbetaken:then,thejudge
must find as a fact whether the condition is met. A wellknown 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
mustprovetothesatisfactionofthejudicialreviewcourtthatthepersoninquestionfalls
withinthedefinitionofillegalentrantinthestatute.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
proposedtobedone.Heisconfinedtoanexaminationofthelegalityofthedecision,which
inturnwillgenerallydependuponwhetherornotthedecisionmakerhastransgressedone
ormoreofLordDiplock'strilogyofrulesinCCSU17:illegality,irrationalityandprocedural
propriety. These are however no longer exhaustive, if they ever were: for my part I
considerthatproportionalityoughtnowtoberegardedasaseparateheadofchallenge.18
But,strictlyforthispartofmyargument,thethreetraditionalcategoriessufficetoindicate
thebroadnatureofaconventionaljudicialreviewexercise.
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 decisionmaking 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
alwaysclearlyunderstood.
Thedifferencehasnothingtodowiththeextenttowhichthereviewedbody'sdecisionis
controversial, whether in political terms or otherwise. It arises as a matter of definition
fromtheverynatureofthepublicpowerrespectivelylyinginthehandsofthecourtsand
those whom they review. The paradigm of a public body subject to the public law
jurisdictionisonewhosepowerisconferredbystatute.Thestatuteislogicallypriortoit
andbytheconstitutionitisforthecourtstopolicethestatute.Buttheydonotactunder
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
fourcornersof*P.L.78theAct,butalsobyensuringthatthestatuteisnotusurpedby
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anyoneincludingthecourtsthemselves.
Sofarthismayappearnomorethanastandardaccountofthepubliclawcourt'sfunctions.
My purpose in giving it is first to demonstrate that the wellknown limits upon the
jurisdictionhavenothingwhatevertodowithproblemsaboutthejudgesembarkingupon
political disputes. They are simply a function of the rule of law: the judges are no more
thananyoneelseentitledtoexercisepowerwhichlegallybelongstoanother.Itwouldbe
idle and misleading to describe this state of affairs in terms of any judicial avoidance of
politicalcontroversy.
Judicial creativity and political ideals

The next path I am to take is a little less clearly mapped. Lord Diplock's judicial review
criterionofillegalityisplainenough:nosubordinatebodymayexceedtheexpressbounds
ofitsstatutorypower:thatis,thepowerwhichonitsproperconstructiontheActconfers.
But what of the other heads of review, Wednesbury19 unreasonableness and procedural
unfairness?Theyarenowaselementaryasillegality.Intheelaborationoftheseprinciples
thecourtshaveimposedandenforcedjudiciallycreatedstandardsofpublicbehaviour.But
the civilised imperative of their existence cannot be derived from the simple requirement
thatpublicbodiesmustbekepttothelimitsoftheirauthoritygivenbyParliament.Neither
deductivelogicnorthecanonsofordinarylanguage,whicharethebasictoolsofstatutory
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
justifiedbytheattributionofanintentiontothelegislaturethatstatutorydecisionmakers
shouldactreasonablyandfairlybutthisislargelyfictitious.Inrecenttimes,beforeRidge
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
powerthatitonlyjustifiedactiontopromotethedistinctpurposesoftheAct,eventhough
the Act did not state them. Before the concept of legitimate expectation assumed the
statusofasubstantivelegalprinciple(whoseprecisedatemaybenicelydebated),itwas
not generally thought that decisionmakers should be prevented from departing from
previous assurances as to their actions without giving those affected an opportunity to
makerepresentations.Wednesbury22itself reaches back to older law but its fruition and
itsmaturitycame20yearsandmoreafteritwasdecided.Itcannotbesuggestedthatall
these*P.L.79principles,whichrepresentmuchofthebedrockofmodernadministrative
law, were suddenly interwoven into the legislature's intentions in the 1960s and 70s and
onwards,inwhichperiodtheyhavebeenarticulatedandenforcedbythecourts.Theyare,
categorically, judicial creations. They owe neither their existence nor their acceptance to
thewillofthelegislature.TheyhavenothingtodowiththeintentionofParliament,saveas
afigleaftocovertheirtrueorigins.Wedonotneedthefigleafanymore.23
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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
anyordinarysenseofthetermisabouthowpowerfulpeopleoughttobehave.Itisnoton
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 decisionmaking, should be roundly and unarguably regarded as well within the
politicalsphere.
One thing is quite clear: if these public law rules may be described as political in nature,
thereisnoquestionofthejudgesrepentingthemonsuchgroundsnoquestion,either,of
anyone else doing sounless 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
manyofthem,includingofcoursethegovernment,aredemocraticallyelected.Butinfact
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
manywhosaytheydonotgofarenough.Ifthesinewsofproportionalitygrowasstrongin
thelawastheotherprinciples,Ibelieveitwillcommandalikeacceptance.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
contentnortheirauthorityaslawtothelegislature.
(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
greaterreach.
(3)Theseprinciplesarenotmorallycolourlessfarfromit.Theyconstituteethicalidealsas
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
effectedbytheunelectedjudges.
(4) The established limits of the jurisdiction are in essence set by the very same ideal
whichhasfuelleditsgrowth:thatallpublicbodiesshouldkeepwithinthepowerwhichthe
law accords to them. Neither these limits, nor any other aspect of our public law as it
presentlystands,canusefullybeexplainedbyreferencetolinesofdemarcationdrawnon
politicalgrounds.
Distinctions between judicial and elective power

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Imaynowposedirectlythequestionwhetherthesejudicialidealsoughttobedescribedas
intheirnaturepolitical,thoughonlytoreformulateit,ortoembarkonadifferentandmore
importantinquiry,inamoment.Ishouldsayfirstthatthemoredirectquestion:arethey
politicalidealsis,Ithink,apttopromoteconceptualconfusion.Theadjectivepoliticalis
what some philosophers used to call a portmanteau wordrather like good. You may
haveagoodbook,agoodman,or(asTomStoppardsaid)27agoodbaconsandwichall
theword'susesshare(atleast)theideaofcommendation,butthingsaregoodindifferent
senses. The notion which is central to issues or ideas which we might as a matter of
languagecallpoliticalis,Ithink,thatinonewayortheothertheyallconcernthewayin
whichthestateistoberun,thepeoplearetobegoverned.Inthatsensetheprinciplesof
judicialreviewareundoubtedlypolitical.Butthistellsusclosetonothing.WhatinrealityI
aminsearchofisarigorousappraisalofthetruedistinctionsbetweenjudicialandelective
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
encroachmentsuponthelegitimateauthorityofgovernmentsorotherelectedbodies,this
exercisewouldverylargelybeofacademicinterestonly,werethepubliclawjurisdictionto
remainstaticbutIdonotthinkitwill,norshouldit.Thetruedifferencesbetweenjudicial
and elective power are of the greatest importance if we are to entertain a respectable
theoryastothebasisonwhichjudicialreviewmayhereafterdevelopasIhopeitdoes
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,
howeverwellintentioned,whichtransgressestheproperboundsoftheirunelectedpower?
Whatwouldbethepositioniftheysoughttoreviewmainlegislation?
Thetruedistinctionsbetweenjudicialandelectivepowercannotbearrivedatbyamerely
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,theabsenceofwhatIwillcallasovereigntextmeansthatthelegaldistribution
of public power consists ultimately in a dynamic settlement, acceptable to the people,
betweenthedifferentarmsofgovernment.Itisnotwritteninstoneitisnotevenwritten
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.Intheend,itisnotamatterofwhatis,butofwhatoughttobe.Thejourneyto
finditisasearchforprinciple,nottheunfoldingofarulebook.Letmeembarkuponit.
Democracy and fundamental rights

Asamatteroffundamentalprinciple,itismyopinionthatthesurvivalandflourishingofa
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
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democratic,politicalpowermusthavelimitssettowhattheymaydo:limitswhichtheyare
notallowedtooverstep.Ifthisisright,itisafunctionofdemocraticpoweritselfthatitbe
notabsolute.
I will begin the task of justifying and explaining this position by saying a little about
fundamental rights.28 This isfortunatelya subject much in vogue nowadays though
pleastoincorporatetheECHRareofcoursefarfromnew.While,alongwithmanyothers,I
wouldwelcomeincorporation,Iamnotconcernedinthisarticlemerelytoaddmynameto
thecallithasrepeatedlybeenmadebyvoiceswithmuchgreater*P.L.82authority,and
thereisofcoursemuchliteratureonthesubject.29Iwillonlysaythis:asiswellknown,
theideaofincorporationisbesetbyconceptualdifficultiessolongasweadheretowhatI
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
fundamentalrightsoughtinprincipletoaffectthereachandlengthofdemocraticpower
incorporationorno.Iwilldoitbyreferencetofreedomofexpression.Otherrights,which
in the compass of this lecture I will not discuss, would call for analogous, but adapted,
arguments.
Iwillstartwiththenotionofextremism.Generally,Iwouldsaythatanextremistopinionis
onewhichadmitsofnoexceptions.Itshallmarkistheclaimtoamonopolyofthetruth.In
thepartypoliticalsphere,extremismisthoughttobetheprovinceofthefarleftandthe
far right. But it cannot be defined in such terms extreme liberalism may lay as dead a
handonfreedomastheothers.Itsdangeristhatitmaymakeintoleranceandcowardice
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.30It
leadstotheneofascistcorruptionofthelanguageexemplifiedinwhatiscalledpolitically
correctspeech.Ishouldheremaketwoconnectedpoints.Thefirstis,Itakeit,asobvious
asitisunoriginal:theviceofsuchprejudices(oranyother,forthatmatter)isnolessa
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,
whichmaybethoroughlyjustified,anditsputativeimpositiononothers,whichisgenerally
unjustified. I do not mean to say that one should not, with all the energy at one's
command,seektopersuadetheholderofbarbarousviewstorecantbuttoentertainthe
notionthathecanorshouldbecompelledtodosoistotreathimasaslave.
Extremismmaybefoundinthesubstanceofabaseopinionbutitmayconsistassurelyin
a preparedness to suppress views at variance with an opinion which itself is essentially
decent.Inboth,theclaimtoamonopolyofthetruthisurged.Thelattercase,however,
carriesthe*P.L.83seedsofaninsidiousdanger:itisthattheverymeritsoftheopinion
beingpromotedmayservetoblowthetrumpetofsuppressionlouder,andtoweakenthe
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resolveofanywhoinsistthattheholderofavileviewisentitledtohavehissay.Allthis,
ofcourse,takesforgrantedthevaluetobeattributedtofreespeech,aboutwhichIshall
havemoretosay.ButthedistinctionbetweenthetwoformsofextremismtowhichIhave
pointeduncoversadeeperquestion,whichengagestheroleofgovernmentandtherefore
ofthelaw.Anindividualcitizenhaslittlepowertosuppresstheopinionsofothers.Hemay
beapettytyrantinhishomeorathiswork,buthisspuriouswritcanneverrunveryfar.A
government,however,isalegallyestablishedhegemonyitsveryfunctionistoruleand
thoughitmayexhortandencourage,itrulesintheendbyforceofcompulsorylaw.
Yethoweverpressingtheforceoflawmaybe,itcannot,shortofvindicatingaprocesswe
wouldrecogniseandcondemnasbrainwashing,itselfexactachangeofmindinanyman.
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
unacceptablemeans.Itcannotthereforebeitslegitimatetasktotry.Itfollowsthatinthe
exerciseofitstrueprerogative,whichistheuseoflegalpower,itisineluctablycommitted
to the primacy of pluralism. Its power is circumscribed by the very fact that the citizen's
willisfree.
The government's constituency is the whole body of such citizens and a democratic
governmentcanhavenoremitbuttoactinwhatitperceivestobetheirbestinterests.It
maygetitwrong,andletthepeopledown.Butitcannotknowinglydoso,forthatwould
betoactinbadfaithandnogovernmentcanjustifyitsownbadfaithbypointingtothe
factthatitwaselectedbythepeople.Thatwouldbetoassertthattheelectorateendorsed
in advance the government's right deliberately to act against its interests, which is an
impossibleproposition.
Thus the free will of every citizen is a premise of all the government's dealings with the
people,andsoconditionsitsdutytoactingoodfaithtowardsthem.Itcannotfulfilitsduty
without recognising this but such a recognition entails the need to accord fundamental
rights,highamongthemtherightoffreedomofexpression.Thisisfirstbecause,asIhave
saidelsewhere,31freedom of expression is a corollary of the power of reason, for whose
possessionthequalityoffreewillisanecessaryconditionandsecondlybecausemanlives
insociety,boundtocommunicatewithfellowsofhiskind.Thepowerofreasontransforms
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.
Whatevernaturalintelligencehemightenjoy,hecouldonlyapplyittophysicalthings.He
wouldhavenobasisonwhichtoformulatemoralprinciples,andnoconceptionofrightsor
duties.*P.L.84Indeedhewouldhavenorightsorduties.Butthehumansituationisfar
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
makingjudgmentsabouthowoneshouldbehavetowardsanother.Nothingismorenatural
to their condition and so to stifle free speech is to deny or frustrate humanity's very
distinguishingcharacteristic.
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Anybutthecrudestsocietywillbeordered,willhave,inwhateverform,agovernment.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
fundamentalfreedomtothepeople.
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
constitutionmustguaranteebypositivelawsuchrightsasthatoffreedomofexpression,
sinceotherwiseitscredentialsasamediumofhonestrulearefatallyundermined.Butthis
requires for its achievement what I may call a higherorder law: a law which cannot be
abrogatedasotherlawscan,bythepassageofastatutepromotedbyagovernmentwith
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
becausethegovernmentchoosestoletitexist,whereasintruthnosuchchoiceshouldbe
opentoanygovernment.
Thedemocraticcredentialsofanelectedgovernmentcannotjustifyitsenjoymentofaright
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
thetyrant'srole.
SincemyargumentmayappeartosometoamounttowhatSedleyJ.*P.L.85 recently
described,33 in a review of a book to which I contributed,34 as a plea for judicial
supremacism,andsinceasIhavemadeclearIconsiderthatthepowerofdemocratically
electedbodiesmustbesubjecttolimits,Imusttemperthisdiscussionwithwhatnodoubt
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(forreasonsIhavenotthetimetoelaborate)Idonotthinkthenotionof
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selfdetermination is the best model to vindicate the pressing moral claims of democracy
sofarastheyconcerntheindividualvoter,nothingcouldbemoreelementarythanthatthe
powerofgovernment,tostayinofficeandmakethroughParliamentcompulsorylawsfor
the obedience of the people, does and must depend utterly on the popular vote. But the
sanctionofthepollingboothisnotmerelyavoiceatthegovernment'sshoulder,atelling
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
bestowedatthepeople'schoiceanditconfersonthemeasurespassedbygovernmenta
crucial moral authority. Since in the last resort the government rules by consent, the
sourceofpublicpowerisnotthestrongarmoftheruler,butthepeoplethemselves.
Evenso,thefundamentalsinewsoftheconstitution,thecornerstonesofdemocracyandof
inalienable rights, ought not by law to be in the keeping of the government, because the
onlymeansbywhichtheseprinciplesmaybeenshrinedinthestateisbytheirpossessing
astatuswhichnogovernmenthastherighttodestroy.Ihavealreadyarguedthisposition
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 governmentor Parliamentbe not absolute. The institution of free and regular
elections, like fundamental individual rights, has to be vindicated by a higherorder law:
veryobviously,nogovernmentcantamperwithit,ifitistoavoidthemantleoftyranny
nogovernment,therefore,mustbeallowedtodoso.
Butthisisnotmerelyapleatothemeritsofthematter,whichcanhardlyberegardedas
contentious the need for higherorder 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
rulesonlybythestrengthofhisarm,andwheretheonlylawistheruler'sdictat,wecan
seethatanygovernmentholdsofficebyvirtueofaframeworkofrules.Theapplicationof
therulesdetermineswhatpersonorpartyis*P.L.86entitled(or,undersomeimaginable
systems,obliged)tobecomethegovernment.Thisisanecessary,notacontingent,truth,
sincetheinstitutionofgovernmentisdefinedbytheruleswereitotherwise,weareback
to the case we have proposed to set aside. Richard Latham of All Souls said this over 40
yearsago35:
Whenthepurportedsovereignisanyonebutasingleactualperson,thedesignationofhim
mustincludethestatementofrulesfortheascertainmentofhiswill,andtheserules,since
their observance is a condition of the validity of his legislation, are Rules of Law logically
priortohim.
Wemayseethesamelogicatworkinothertexts.HereisSirWilliamWade,inanarticlein
1955,36citingSalmondonJurisprudence37asfollows:
It[Parliamentarysovereignty]isthelawbecauseitisthelaw,andfornootherreasonthat
it is possible for the law itself to take notice of. No Statute can confer this power upon
Parliament,forthiswouldbetoassumeandactontheverypowerthatistobeconferred.
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The reasoning is the same as Latham's: the notion of sovereignty is logically prior to the
ActsofParliamentthemselves.Wadealsosays:
What Salmond calls the ultimate legal principle is therefore a rule which is unique in
beingunchangeablebyParliamentitischangedbyrevolution,notbylegislationitliesin
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
validActofParliamentandthatthedecisionofthisquestionisnotdeterminedbyanyrule
oflawwhichcanbelaiddownoralteredbyanyauthorityoutsidethecourts.Itissimplya
politicalfact.
Theimportanceofthispassageconsistsinthetwopropositions(a)thatthesovereigntyof
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 secondthe political factthough not identical with it, calls up the
formulationwhichIhaveventuredastothebasisonwhichstatepowerisdistributedinthe
unwrittenconstitution:it*P.L.87isbymeansofadynamicsettlementbetweenthelegal
organsofgovernment.
The thrust of this reasoning is that the doctrine of Parliamentary sovereignty cannot be
vouchedbyParliamentarylegislationahigherorderlawconfersit,andmustofnecessity
limitit.Thusitisnot,andcannotbe,establishedbythemeasureswhichsetinplacethe
constitutionalreformsofthelateseventeenthcenturynorbyanylegislation.IndeedLord
BrowneWilkinson's construction of Article 9 of the Bill of Rights 1688,38to which I have
already referred, means only that no impediment may be placed on Parliamentary
processes,suchas,forinstance,byaclaimagainstanMPfordefamationitisnomorenor
lessthanaruleofabsolutelegalprivilege.Ithasnothingtodowiththequestionwhether
statutesinproperformarebylawbeyondchallenge.Itseffectisthatnoconstraintofany
kindistobeimposedonthefreedomofParliamenttodebatewhateveritlikes.39Thatisof
courseavitalprinciple,andthecourtshavebeenatpainstorespectwhattheyregardas
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
fundamentalrightor,wereittohappen,withdemocracyitself,doesnotinanysensetouch
the freedom of members of either House, uninhibited by any law, to say whatever they
chooseduringaBill'spassage.
Sotheruleswhichestablishandvindicateagovernment'spowerareinadifferentcategory
fromlawswhichassumetheexistenceoftheframework,andaremadeunderit,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
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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
thoseinplaceforthealterationofordinarylaw.
ButinBritaintherulesestablishingtheframeworkpossess,onthefaceofit,nodifferent
characterfromanyotherstatutelaw.Therequirementofelectionsatleasteveryfiveyears
mayintheorybealteredbyamendinglegislationalmostasreadilythoughthealmostis
importantas a provision defining dangerous dogs. The conventions under which cabinet
governmentiscarriedoncouldintheorybechangedwithnospecialrulesatall,ascould
anyofthenormsbywhichthegovernmentpossessestheauthoritytogovern.Therulesby
whichthepowerofagovernmentisconferredareineffectthesameastherulesbywhich
*P.L.88thegovernmentmaylegislateuponothermattersafterithasgainedpower.In
theendthesanctionforthemaintenanceofdemocracyisinpointoflawnogreaterthan
the sanction for the maintenance of the dangerous dogs definition. But the rules for
extendingthelifeofaparliamentarenotquitethesame,andtheextenttowhichtheyare
not is itself something of an irony in face of the view that democratic institutions are the
bestsavioursofourfreedoms:thestrictcurtailmenteffectedbytheParliamentActsupon
thepoweroftheHouseofLordstorejectprospectivelegislationpassedbytheCommons,
soastodefinetheauthorityoftheupperHouseasadelayingfunctiononly,hasbysection
2(2)oftheParliamentAct1911noapplicationtoaBillcontaininganyprovisiontoextend
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
farestablishedintheBritishstateahigherorderlawbutthisisselfcontradictory,unless
wearetosaythatthepowerofParliamentisnotlegalpoweratall.
BeforeproceedingfurtherIshouldsaysomethingoftheimpactofthelawoftheEuropean
Union upon the traditional AngloSaxon41perception of Parliamentary sovereignty, which
mightbesaidtohavebeenfundamentallyalteredbythedecisionsinEx p. Factortame42
andExp.EqualOpportunitiesCommission.43InthesecasestheHouseofLordsheldthat
the High Court was competent to give relief, whether by interim injunction44 or final
declaration,45whoseeffectwouldbetodisapplymainUnitedKingdomlegislationasbeing
incompatiblewiththelawoftheUnion.ThusintheEuropeancontextthecourts,prompted
bythe*P.L.89E.C.J.,havetakenthepowertosuperviseprimarylegislationpassedby
the Queen in Parliament. For my purposes the crucial piece of reasoning is that of Lord
BridgeinthefirstFactortamecasewherehesaid46:
Byvirtueofsection2(4)oftheActof1972[theEuropeanCommunitiesAct]PartIIofthe
Act of 1988 is to be construed and take effect subject to directly enforceable Community
rights...ThishaspreciselythesameeffectasifasectionwereincorporatedinPartIIof
theActof1988whichintermsenactedthattheprovisionswithrespecttoregistrationof
BritishfishingvesselsweretobewithoutprejudicetothedirectlyenforceableCommunity
rightsofnationalsofanymemberstateoftheEEC.
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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(whateveritswords)ascompatiblewithrightsaccordedbyEuropeanlaw.SirWilliam
Wade regards this development as revolutionary, because in his view it represents an
exceptiontotherulethatParliamentcannotbinditssuccessors.47ButIdonotthinkthatis
right. It is elementary that Parliament possesses the power to repeal the European
CommunitiesActinwholeorinpart(Ileaveasidethepoliticalrealities)andthemostthat
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
abrogatedbyanimpliedrepeal.Expresswordswouldberequired.That,however,ishardly
revolutionary:thereareanumberofareaswhereaparticularstatutoryconstructionisonly
likely to be accepted by the courts if it is vouchsafed by express provision.48 Although
FactortameandEOCundoubtedly demonstrate what may be described as a devolution of
legislative power to Europe, it is no true devolution of sovereignty. In legal (though
certainlynotpolitical)terms,theorgansofEuropeanlegislationmayintruthbedescribed,
forsolongastheActof1972remainsonthestatutebook,asParliament'sdelegatesthe
lawofEuropeisnotahigherorderlaw,becausethelimitswhichforthetimebeingitsets
tothepowerofParliamentareatthegraceofParliamentitself.ForthesereasonsIdonot
believethatourmembershipoftheUnion,oritslegalramifications,hasanyfundamental
bearingonmythesisinthispaper,andImayreturntothemainstreamoftheargument.
*P.L.90Idonotofcoursesuggestthattherearecircumstancespresentlyforeseeablein
which an elected government might seek to prolong its own existence by subverting the
people'srighttovote,orotherwisetoeffectfundamentalandundemocraticchangesinthe
natureofourgovernmentalinstitutions.Mythesisisthatthecitizen'sdemocraticrightsgo
hand in hand with other fundamental rights the latter, certainly, may in reality be more
imaginablyatrisk,inanygivensetofpoliticalcircumstances,thantheformer.Thepointis
thatbothareorshouldbeofflimitsforourelectedrepresentatives.Theyarenotmatters
upon which, in a delegated democracya psephocracythe authority of the ballotbox is
any authority at all. It is a premise of elective government, where free people are the
voters,thattheseprinciplesbeobservedbywhoeveriselected.
The separation of powers in the British constitution

ProfessorRobertStevens,inhisrecentbookTheIndependenceoftheJudiciary:TheView
fromtheLordChancellor'sOffice,49says:
Nothing underlines the atheorectical nature of the British Constitution more than the
casualnesswithwhichitapproachestheseparationofpowers.
SedleyJ.,inhisreviewofthebook50(heisagreatreviewer),ascribestothiswhathecalls
a hint of transatlantic selfsatisfaction. But it represents an important truth about the
nature of state power in Britain. It is characteristic of the intellectual insouciance which
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marksourunwrittenconstitutionthatthoughhigherorderlawisanimperativerequiredfor
the establishment of institutions to govern a free people, not only is it nowhere to be
found, but its emphatic denial, in the shape of the absolute sovereignty of Parliament, is
actually represented by our traditional writers such as Dicey as a constitutional
cornerstone.
IhavesofarusedthetermgovernmentindifferentlyasbetweentheLegislatureandthe
Executive.Onthefaceofitthatisasolecismwhichnofirstyearconstitutionallawstudent
wouldbelikelytocommit.EveryoneknowsthattheExecutiveissubjecttotheLegislature,
and only the latter is taken to be sovereign. However, the fact that Parliament often,
perhaps generally, lacks sufficient systematic control over the Executive government has
becomeamelancholytruismofourday.51These are well recognised concerns, and I will
not lengthen this paper by anything amounting to a systematic description of the
difficulties, which are undoubtedly sensed by many Parliamentarians them*P.L. 91
selves.52LikeeverythingelseIhavesaid,theyhavenothingtodowithanypartypolitical
divide.ThepoweroftheHouseofLordsisinthelastresortonlytodelaymeasureswhich
have been passed by the Commons, and the Monarch may be taken, in any presently
foreseeable circumstances to be obliged to give Her assent to whatever legislation has
passed, through both Houses. The real power of Parliament rests in the House of
Commons, which, for most of the time, is manned by a majority which will support the
governingpartytheExecutiveonmajorissues.
Clearly,however,Parliamentisfarfrombeingadeadletter.Theforceofdebatemaycause
thegovernmenttothinkagain:itmaywinthevotebutlosetheargument,andthepress
will justifiably trumpet the fact. Ministersespecially the Prime Ministermust answer
questions in the House their weaknesses and strengths are thus exposed. Parliamentary
committees do work of enormous value. There may be serious revolts by backbenchers,
threatening the government majority. Despite its limited powers, and quite apart from
section2(1)oftheParliamentAct1911,theHouseofLordsmayimposeimportantdefeats
on the government, or may in debate express authoritative disagreement with what the
Commonsputstoit,andpolicymayberevisedasaresult.Butintheend,formostofthe
time,theExecutivecanbendParliamenttoitswill.
Thereisacertainironyinthisstateofaffairs.Theresultoftheconstitutionalsettlementof
theseventeenthcentury,whateverthelogicofthematter,wastoestablishthesupremacy
ofParliamentovertheKingoftheLegislatureovertheExecutive.Whenthegovernment
was in the possession of the Monarch personally, the ideal of Parliamentary sovereignty
amounted to a claim that the ultimate political power should rest in the hands of the
people's elected representatives, not those of an unelected autocrat. But the function of
ExecutivegovernmenthaspassedfromtheSovereigntoHerministers,whoaremembers
ofParliamentandtheveryconventionthatrequirescommandofamajorityintheHouse
ofCommonsasaconditionoftherighttorulehas,infactthoughnotinname,givenback
the final power to the Crown, at least for most of the time though it is exercised not by
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theMonarchbutbyothersinHername.
Howeverthesameconventionmeansofcoursethatthesovereign*P.L.92powerinthe
stateiseffectivelyinthehandsofanelectedbody.Thoseoldbattleshavelongagobeen
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.
Whathasincrudetermshappenedsincetheseventeenthcenturyisthattherehasbeena
tradeoff between two ideals: one is the notion that Parliament should be sovereign the
otheristhattheExecutivegovernmentshouldbedemocraticallyaccountable.Ithasbeen
done by clothing the Executive, previously autocratic and unaccountable, with the
legitimacyofParliament.
ThepowerwhichisgenerallyenjoyedbytheExecutiveovertheLegislatureissogreatthat
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
indirectlyvouchsafedbytheelectiveprocess.Butandthisistheemphasisofmyposition
evenifParliamentenjoyedatruehegemonyovertheExecutive,stillitsruleshouldnotin
thelastresortbeabsolute:stillahigherorderlawwouldbeneededfortheentrenchment
ofconstitutionalrightsandtheprotectionofdemocracyitself.
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
electoratethisisagreatpower,withwhichneitherthejudgesnoranyoneelsehaveany
businesstointerfere.Thisistheplaceheldbydemocracyinourconstitution.Itistheplace
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
politicalsovereignty.Itisasovereigntywhichcannotbeobjectedto,saveatthepriceof
assaultingdemocracyitself.Butitisnotaconstitutionalsovereigntyitdoesnothavethe
status of what earlier I called a sovereign text, of the kind found in states with written
constitutions.Ultimatesovereigntyrests,ineverycivilisedconstitution,notwiththosewho
wieldgovernmentalpower,butintheconditionsunderwhichtheyarepermittedtodoso.
Theconstitution,nottheParliament,isinthissensesovereign.InBritaintheseconditions
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.
Foritspartjudicialpowerinthelastresortrestsintheguaranteethatthisframeworkwill
be 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
thestate,thebed*P.L.93rockofpluralismwillbemaintained.Wehavenootherchoice.
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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
necessarilyconstrainednotonlybyaprohibitionagainstintrusionintowhatisParliament's
propersphere,butbytherequirement,andthetruth,thattheyhaveintheirdutynoparty
political bias. Their interest and obligation in the context of this discussion is to protect
valueswhichnodemocraticpoliticiancouldhonestlycontest:valueswhich,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
thattheirroleisreactivetheycannotinitiatealltheycandoistoapplyprincipletowhat
isbroughtbeforethembyothers.Nothingcouldbemoredistinctfromthedutyofpolitical
creativityowedtousbyMembersofParliament.
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.
Constitutionaltheoryhas,perhaps,occupiedtoomodestaplacehereinBritain,sothatthe
colourandreachofpublicpowerhasnotbeenexposedtoaglarethatisfierceenough.But
theimportanceofthesemattersissogreatthat,whateverthemeritsordemeritsofwhatI
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
principledanswerstothosewhoaskofthenatureofstatepowerbywhatlegalalchemy,in
any situation critical to the protection of our freedoms, the constitution measures the
claimsoftherulerandtheruled.Theimperativesofdemocracyandfundamentalrightsdo
not only demand acceptance they demand a vindication that survives any test of
intellectualrigour.Theremustalwaysbevoicestospeakforthem,inandoutofthelaw.
Bytheirverynature,theseimperativesrequirealsothattheirenemiesbegivenfullreinto
express their views. It means that the defence of these values cannot be assumed, but
mustalwaysbeasserted.Thereisnopointatwhichthereisnothingmoretosaythereis
no moment at which they are indefensible, no imaginable circumstances in which to
consignthemtosilence,liketheoracleatDelphiwhenJuliantheApostatesenttoitinthe
fourthcenturyAD:
TellyetheKing,thecarvenhallisfallenindecay
Apollohathnochapelleft,noprophesyingbay,
Notalkingspring.Thestreamisdry,andhadsomuchtosay.
Youwillforgive,Ihope,thisGrecianflourishattheend.
P.L.1995,Spr,7293
1.
Exp.Brind[1991]1A.C.696.
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2.
Exp.Bugdaycay[1987]A.C.514.
3.
Exp.Hammersmith[1991]1A.C.521.
4.
Exp.Fewings,(1994)92L.G.R.674Andseep.27supra.
5.
Exp.Avon[1991]1A.C.558.ThisdecisionoftheCourtofAppealwasconcernedwiththequestion
whetherthecourtpossessedthepowertograntastayagainsttheCrown(andhasbeenovertakenby
thedecisionoftheHouseofLordsinMv.HomeOffice[1993]3W.L.R.433),butitaroseinthe
contextofasubstantivechallengetoadecisionbytheSecretaryofStatetoapproveaschool'sgrant
maintainedstatus.
6.
Exp.GreenpeaceLtd[1994]1W.L.R.570.
7.
Exp.ReesMogg[1994]Q.B.552seeR.Rawlings[1994]P.L.254,367.
8.
[1985]A.C.374.
9.
[1994]2W.L.R.101.
10.
[1969]2A.C.147.
11.
However,thereremainsgreatdifficultyinseeinghowsuchousterclausesandtheruleoflawcan
sharethesamebed.IhaveofferedsomediscussionoftheproblemsinChapter4ofSupperstoneand
Goudie,JudicialReview(1992),especiallyat6167.
12.
[1993]A.C.593andseeD.Oliver[1993]P.L.,5.
13.
at638G639A.
14.
IamnotmyselfconvincedthatifaMemberofParliamentweremotivatedbyreasonsofactual
personalmalicetousehispositionsoastodefame,inthecourseofdebate,anindividualoutside
ParliamentheshouldnotasaresultbesubjecttotheordinarylawofdefamationandArticle9could
readilybeconstruedconformablywithsuchastateofaffairs.Thereisananalogywiththequestion
whetherjudgesshouldenjoyanabsolutelegalimmunityforwhattheydointhecourseoftheiroffice
(astowhichthereisaninterestingdiscussionbySedleyJ.intheLondonReviewofBooks,vol.16,no.
7).AndseeMarshall,ImpugningParliamentaryImpunity[1994]P.L.509.
15.
asexemplifiedinCCSU.
16.
SeeExp.Khawaja[1984]A.C.74.
17.
[1985]A.C.374at410411C.
18.
SeemyarticleIstheHighCourttheGuardianofFundamentalConstitutionalRights?[1993]P.L.59,
at7175.
19.
AssociatedProvincialPictureHousesv.WednesburyCorporation[1948]1Q.B.223.
20.
[1964]A.C.40.
21.
Padfieldv.MinisterofAgriculture[1968]A.C.997.
22.
[1948]1Q.B.223.
23.
Itseemsonlyfairtowarnthereaderifwarningwereneededthattheviewsexpressedinthis
paragraphareatvariancewithSirWilliamWade'sopinionthatthebasisofthecourt'sjurisdictionto
reviewadministrativeaction,atleastwhereitistakenbyastatutorydelegate(typicallyaMinister),is
thedoctrineofultravires.Afulldiscussionoftheissuesthatdivideuslies,Ifear,beyondthe
reasonablescopeofthisarticleforWade'spositionseeAdministrativeLaw(7thed.1994)pp.41ff.
ContrastP.P.Craig,AdministrativeLaw(3rded.1994)pp.12ff.
24.
TheLanguageofMorals(1952)andFreedomandReason(1963).
25.
InThepurposeandScopeofJudicialReview,oneofthepaperspresentedataconferenceatthe
UniversityofAucklandinFebruary1986andpublishedinJudicialReviewofAdministrativeActionin
the1980s(OUPandtheLegalResearchFoundationInc.1986),SirGerardBrennansaidthis(p.
18):Thepoliticallegitimacyofjudicialreviewdepends,intheultimateanalysis,ontheassignmentto
theCourtsofthatfunctionbythegeneralconsentofthecommunity.Theefficacyofjudicialreview
depends,intheultimateanalysis,ontheconfidenceofthegeneralcommunityinthewayinwhichthe
Courtsperformthefunctionassignedtothem.Judicialreviewhasnosupportotherthanpublic
confidence.
26.
ThisphraseappearsinthetitleofJowellandLester'spiece,BeyondWednesbury:Substantive
PrinciplesofJudicialReview[1987]P.L.368.AlthoughIdonotagreewiththeapproachtakenbythe
authorstothepartwhichtheEuropeanConventionofHumanRightsshouldplayinourlaw(seeIs
theHighCourttheGuardianofFundamentalConstitutionalRights?[1993]P.L.59),thearticleisa
stimulatingtextforanyoneinterestedinthefuturedevelopmentofpubliclaw.
27.
InJumpers,whosealchemyoflogicandhilaritywasbrilliantlyputacrossinthefirstproduction,with
SirMichaelHordernandDianaRigg.
28.
SomeofmyviewsaretobefoundinmoreexpandedforminIstheHighCourttheGuardianof
FundamentalConstitutionalRights?[1993]P.L.59.
29.
AnyoneinterestedinitoughtnottomissLordLester's1994PaulSieghartMemorialLecture,Taking
HumanRightsSeriously.
30.
Provisionssuchasthatcontainedinsection18ofthePublicOrderAct1986,whichcriminalisesthe
useofthreatening,abusiveorinsultingwordsorbehaviourwhichareeitherintendedorlikelytostir
upracialhatred,wantwatching.Itwasenactedtoassaultoneofsociety'sbaservicesbutthereisa
finelinebetweenpromotingracialtranquillityanddeprivingthosewithevilopinionsoftheirrightto
freeexpression.Nodoubtthereisadistinctionbetweendiscouragingracialhatredinthecommunity,
19/20
10/11/2015
andthesuppressionofracialistviewsbutitisuncomfortablytenuous,notleastsincethecrimemay
consistininsultingwordsmerelyintendedtostirupracialhatred.
31.
JudicialRemediesandtheConstitution(1994)57M.L.R.213at226.
32.
CompareStMatthew'sGospel,Ch.12v.30:Hethatisnotwithmeisagainstme.
33.
[1993]P.L.543,at544.
34.
SupperstoneandGoudie,JudicialReview(1992).
35.
TheLawandtheCommonwealth(1949)p.523.R.F.V.Heuston,inthe2nded.ofhisEssaysin
ConstitutionalLaw(1964)(p.7),describedthisworkasthemostbrilliantcontributiontothe
literatureofEnglishconstitutionallawsinceDicey.
36.
TheBasisofLegalSovereignty[1955]C.L.J.172.
37.
11thed.p.137.
38.
InPepperv.Hart[1993]A.C.593at638G639A.
39.
TheauthoritiesshowthatthelawaccordstoeachHouseofParliamentanabsoluterighttoregulateits
owninternalproceedings:seeforexampleBradlaughv.Gossett(1884)12Q.B.D.271.
40.
AsisevidentfromtheremarksofLloydLJinExp.ReesMogg[1994]Q.B.552at561AD.
41.
Iusethetermadvisedly:somematerialssuggestatleasttheseedsofalessmonolothicapproachin
ScotlandseeforexampleMacCormickv.LordAdvocate1953SC396perLordPresidentCooperat
pp.412413.TheUnitedKingdomParliamentdatesonlyfromMay1,1707,whentheKingdomsof
ScotlandandEnglandweremergedbytheTreatyofUnion,ratifiedbyActspassedinthesameterms
bybothnationalParliaments.Thereareinterestingquestions,intowhichIcannotgohere,astothe
statusoftheseActs,whichmightbesaidtorepresentaformofhigherorderlawvisvisthe
ParliamentoftheUnitedKingdom.GivenArticle19oftheActofUnion(whichIwillnotsetout),might
itbesaidthattheUnitedKingdomParliamentlacksthelegalpowertoabolishtheCourtofSessionin
Edinburgh?(Ihopeso.)Ishouldsaythatthesebriefreflectionshavebeenpromptedbyapaper,
whichSirThomasBinghamMRwaskindenoughtosendme,givenbyLordHopeattheAnglo
AmericanLegalExchange1994andentitled:TheConstitutionalPositionofScotlandwithintheUnited
KingdomtheTreatyofUnionandtheEuropeanUnion,whichsofarasIamawarehasnotsofar
beenpublished.
42.
[1990]2A.C.85and[1991]1A.C.603.Factortamewasconcernedwiththecompatibilityor
otherwiseofprovisionscontainedinPartIIoftheMerchantShippingAct1988withCommunityLaw.
43.
[1994]2W.L.R.409.
44.
AsinExp.Factortame(No.2)[1991]1A.C.603,aftertheEuropeanCourtofJusticehadruled,
followingareferencemadeunderArticle177oftheTreatyofRomeinthefirstFactortamecase
[1990]2A.C.85,thatnodoctrineofnationallawcouldofitselfprohibitsuchaninjunction.
45.
AsinExp.EOC[1994]2W.L.R.509,inwhichitwasdeclaredthatthethresholdprovisionsinthe
EmploymentProtection(Consolidation)Act1978wereincompatiblewithArticle119oftheTreatyof
RomeandrelevantCouncilDirectives(andthusofnolegaleffect).
46.
[1990]2A.C.85at140BC.
47.
AdministrativeLaw,(7thed.1994)pp.3031c.f.Craig,AdministrativeLaw,(3rded.1994)pp.188
193.
48.
Aswhereastatuteissaidtoexacttaxes,imposecriminalliability,ortohaveretroactiveeffect.Such
instancesofcourse,havenothingtodowiththedoctrineofimpliedrepeal.ButIdonotseewhythe
courtsshouldnotholdinagivencasethatthecontentofearlierlegislationissuchthatitcanonlybe
repealedexpressly.Nodoubtthatispreciselywhatwouldhappenif,forexample,anattemptwere
madetorepealtheHabeasCorpusActsbutitcouldnotbesuggestedthatajudicialinsistenceon
expresswordseffectedaseachangeinthedoctrineofsovereignty.TheprinciplethatParliamentcan
makeandunmakeanylegislationwhateverwouldbequiteuntouched.SeeA.W.Bradley,J.L.Jowell
andD.Oliver(eds)TheChangingConstitution(3rded.1994)atpp.101105.
49.
1993.
50.
IntheLondonReviewofBooks,Vol.16No.7.
51.
Thoughitwasin1976thatLordHailshamcoinedthephraseelectivedictatorship.
52.
InaletterpublishedintheIndependentonOctober20,1994EarlRussellsaid:Whatmustbechanged
ifwearetohavegenuinelyconstitutionalgovernmentisthepowerofParliamenttodowhateverit
likesButhewenton:Regretfully,Ihavecometotheconclusionthatthiscannotbedonein
EnglishlawTheonlypowercapableofcontrollingParliament,andthereforegivingusgenuinely
constitutionalgovernment,istheEuropeanUnion.Thisisbecause,intheEuropeanCommunitiesAct
1972,Parliamenthassowilledit.ThisistheonlyreasonforwhichEnglishjudgescanevercontrolan
ActofParliamentHisLordshipdoesnotacknowledgethat,onhisownreasoning,thepowerof
EuropeanlawisnomorethanafunctionofParliament'spowerandithasnotoccurredtohimthat
thejudgesmaynotbepowerlesstotakeotherinitiativesinthenameofconstitutionalgovernment.
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Law and democracy

Judges and politics

Judicial creativity and political ideals

Distinctions between judicial and elective power

Democracy and fundamental rights

The imperative of higherorder law

The separation of powers in the British constitution

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