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Commonwealth Law
Bulletin
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Is the High Court the

Guardian of fundamental
constitutional rights?
a
The Hon Mr Justice Sir John Laws
a
High Court Judge, England
Published online: 13 Aug 2010.

To cite this article: The Hon Mr Justice Sir John Laws (1992) Is the High Court
the Guardian of fundamental constitutional rights?, Commonwealth Law
Bulletin, 18:4, 1385-1396, DOI: 10.1080/03050718.1992.9986233

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 October, 1992

Is the High Court the Guardian of

Fundamental Constitutional Rights?
By The Hon Mr Justice Sir John Laws, High Court Judge, England
In other jurisdictions the title of this talk would be regarded as nothing more than an
invitation to answer a question too obvious to be worth asking. In the USA, the civil
law countries, and in Commonwealth jurisdictions possessing written Constitutions
the Supreme Courts are a bulwark of fundamental rights which, where the court's writ
runs and where its authority is respected, are not allowed to be subverted. In our own
jurisdiction, it is a commonplace to hear calls for a Bill of Rights or a written
Constitution. No doubt as a judge I should not enter into the politics of such a question;
nor for my purposes, is it necessary to do so; what I am interested in is another question
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altogether. It is whether, without recourse to legislative constitutional change, the

common law is today able to accord a priority to fundamental rights comparable to
their entrenchment in written sets of norms, and, to do so by means of the development
of principles by the methodology which has always characterised the common law:
that is by incremental decision-making in which apparently new principles belong to a
continuum whose starting-point is uncontentious and well-established. I have to
acknowledge that this is a large subject; and some of the positions I will take would
require more exhaustive treatment to do them justice than I can accommodate in a
single lecture, if its length is to be tolerable.
I do not propose to attempt an exhaustive definition or classification of what should
be regarded as fundamental constitutional rights. But it will be a defining characteristic
for my purposes, albeit a negative one, of such a right that its source is not statutory;
this follows from the fact that my subject is, and is only, the prospective development
of the common law. Where Parliament confers a right, the court's duty, elementarily,
will be to enforce it; and, usually at least, this will involve no special difficulty. I am not
concerned with the vindication of whatever rights the elected government persuades
the Legislature to confer upon the citizenry; that would merely be a discussion about
the effect given by the courts to Acts of Parliament. Nor am I concerned with what
rights the Executive ought to invite Parliament by statute to distribute among the
people; that would be a discussion about government policy.
As I have foreshadowed, the issue I will examine is this: to what extent can, and
should, the common law courts themselves elaborate and make good basic rights by
building on existing public law principles, so as to insist upon and secure a high degree
of priority for those central rights which broadly find their place in the principal
substantive provisions of ECHR? My thesis is that such an enterprise ought to be and
can be undertaken without any heterodoxy, and that it is supported by these four
propositions, three of which, at least, are self-evident: (1) none of the objections to
statutory incorporation of ECHR rest on the proposition that such rights should not be
enjoyed by the peoples of the United Kingdom; (2) in the community of developed
democracies, we have reached the stage where it can be said that rights of this kind
have become an axiom, or series of axioms, about whose desirability there can be no
serious argument; (3) it has generally been the task of the judges to ascertain the
principles according to which the people are to be protected from the exercise of
arbitrary power; and (4) these norms or axioms ought to be developed by the distinctive
process of the common law.
Of these four propositions, (1) is a proposition of fact. It is I think obviously true, and
I propose to regard it as such and take no time justifying it here. (2) is a proposition of
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moral or (in the broadest sense) political principle; given the nature of the ideals
enshrined in ECHR, such as freedom of expression (to which in particular I shall
shortly return), to deny it is by necessary implication to assert a totalitarian position in
which individuals are subservient to the ends of the State: I propose to regard such a
position as obviously barbarous, and therefore to assume the truth of (2). (3) is, I
suppose, a proposition of legal history, and therefore, again, of fact; it is certainly an
apt soubriquet to describe what the judges have been about in developing judicial
review over the last twenty years or so. So I shall take this proposition as given as well.
So the pitch of what I have to say concerns the fourth.
It will be necessary, as you would expect, to look along the way in particular at the
ECHR. But first I should say a word about what has beeen achieved in the judicial
review field. Before this audience, I need not of course rehearse the developments of
the past twenty years or so. It is enough to say that the courts now oversee decision-
making by government by the application of increasingly refined standards in almost
every field; that, as I believe, there is now little or no tension between government and
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judiciary as a result; that this state of affairs has been brought about without any
significant or serious suggestion being made that the judges have become politicised so
as to prejudice their independence; this is particularly important. If this is a rosy
picture, it is not unduly so. The fact is that, as all the modern writers would agree, the
courts' capacity to confine the exercise of public power so as to prevent excess or abuse
has been developed to a point where the judicial laisser-faire of the 1940's and 1950's
now looks like an alien aberration in the march of the law. Thus the launching-pad for
my thesis is the length and breadth of what the common law has already achieved in
judicial review.
The first position: no incorporation
I propose to begin my task by making it clear that my argument is not intended to
support a plea for what might be called the judicial incorporation of ECHR. In doing
so, I should like to draw what seems to me a distinction of fundamental importance,
which I shall also deploy in later sections of the lecture. It is obvious enough, but seems
to have attracted little attention in the discussions, in or out of the courts, of the impact
of ECHR on our law. It is between these two propositions: (1) the ECHR, as a legal
instrument, is not part of the law of England; and (2) the contents of the ECHR, as a
series of propositions, largely represent legal norms or values which are either already
inherent in our law, or, so far as they are not, may be integrated into it by the judges. I
am an advocate for the second proposition, not the first.
That ECHR is no part of domestic law is elementary. But it is no more than a
particular application of an old rule, itself unsurprising, and having its genesis in a
period before the ECHR was thought of. The rule is of course that international treaties
generally are not part of domestic law. This is not to be seen as a conservative principle,
designed consciously or unconsciously to create a space in which the Executive is free
of the court's control. The true basis for the rule is surely this: since a treaty is made by
the Executive, generally as an act of prerogative power, it cannot have the force of law
for the very good reason that the Crown is not a source of law: the only sources of law
under our Constitution are the other two arms of government, the Judiciary and the
Legislature. Thus the rule about treaties should appeal particularly to libertarians: it
means that the government cannot impose laws on the people by entering into
international agreements, any more than by any other means save by command of a
majority in the elected Parliament, where the law proposed becomes, of course, an act
of the Legislature.
The importance of this distinction is that it focusses attention on what is, and what is
not, the real area for the development of the common law in connection with the
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ECHR. The task for the judges cannot be to incorporate ECHR, however desirable an
end that might in many quarters seem; even assuming that the judges might take the
power to do this, as I have indicated it would be to accord the force of law to a text
whose genesis is neither in the Legislature nor the Judiciary, albeit that were they to do
so the judges would necessarily be giving their own imprimatur to it. In looking at the
principles in ECHR, we should, accordingly, shake ourselves free of the intellectual
shackles which so easily confine and distort their true importance for the common law
if incorporation is regarded as the issue.
The extent to which a failure to pay attention to this distinction can bedevil analysis
of the true importance of fundamental rights in the common law is exemplified by
some of the reasoning in an important article by Jowell and Lester in [1987] Public
Law 369: "Beyond Wednesbury: Substantive Principles of Judicial Review". The
authors assault the Wednesbury doctrine as unsatisfactory in a series of ways, and
propose the development of substantive principles of review, which would engage
ECHR. They say: ". . . the exercise of public powers should be subject to the
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presumption (in the absence of compelling statutory language to the contrary) that
nothing may be done by a public body which infringes the rights and freedoms
guaranteed by the . . . Convention (and the other international human rights treaties
by which the United Kingdom is bound)." (p 379). But this is the language of
incorporation; and any appeal to the content of ECHR so framed will run into the
ground so long as it remains a legal fact that the Crown is not a source of law. One can
see it happening in case after case, where the courts have been faced with arguments
designed to entice them to apply ECHR material in deciding the issue. There are a
number of examples in the immigration field, of which one of the best known is Bibi
[1976] 1 WLR 979. At 984D Lord Denning said: "Then Mr Blom-Cooper took another
point altogether. He said that the immigration officer ought to have admitted the lady
because of the ECHR. . . . We have again been invited to consider how far this
Convention is part of the law of this country." And the lady lost. Incorporation, clearly,
is not the way forward.

The second position: use of ECHR as a text to inform the common law
But it does not follow from this that the common law has no choice but to close its
books and hold that the substance of the ECHR has no place in their pages. In many
areas of the law, development—indeed change—has been wrought by the judges
because they have paid attention to evolving social and moral concepts, and to the
demands and expectations of modern society. They have done it in the law of
negligence, and, of course, in the field of judicial review itself. They have even done so
in criminal law, as by the recent decision concerning rape within marriage: R [1991] 3
WLR 767 (HL). But they have always proceeded by building on existing principle. In
doing so, they have not infrequently paid attention to foreign legal texts, and drawn
assistance and illumination from them: an example well known to public lawyers is
Lord Scarman's endorsement, in Re Findlay [1985] AC 318, of some observations of
Sir Robin Cooke in a case called CREEDNZ.
Why may the courts not have regard to the ECHR jurisprudence in precisely the
same way as they look to the decisions of foreign courts in other fields? No one
suggests that when the House of Lords reforms the common law by reference to a
decision of the Supreme Court in a Commonwealth jurisdiction, it incorporates an
alien text: nothing could be more jejune. If, despite the present unpromising state of the
English cases, our courts were to adumbrate, in the context of interlocutory relief
against the Crown, the use of interim declarations in reliance in part on the
jurisprudence of the Supreme Court of Israel, no one could sensibly suggest that such a
recourse would involve an improper exercise of judicial power. And indeed, where the

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court cites an academic work with approval, no one complains that some illegitimate
exercise is afoot: nor could they. Why is the ECHR different? It is not; it only seems so
because of a failure to recognize the force of the distinction which I have described.
Before taking a closer look at the possibilities of developing the common law by the
use of ECHR principles, I should turn aside and refer to some of the provisions of the
Convention itself. Many of its Articles reflect what are nowadays no more than
obvious norms in a developed democratic society: this is the second of the four
propositions which I stated earlier. I shall not attempt a journey through the whole
Convention, but will refer to two Articles in particular, because they have especially
engaged the attention of our courts: Arts 8 and 10.
As you know, Art 8(1) provides:
Art 8(1). Everyone has the right to respect for his private and family life, his home and his
correspondence.
And the first sentence of Art 10(1):
Art 10(1). Everyone has the right to freedom of expression.
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In each Article, the second paragraph provides exceptions. They embrace such matters
as national security and the prevention of disorder or crime; but if the application of an
exception is to be justified, it must be "in accordance with the law" (Art 8) or
"prescribed by law" (Art 10), and, in both Articles, "necessary in a democratic
society". As one would expect, much of the case-law of the Court has been concerned
with the width of these exceptions; and the Court has developed the concept of a
"pressing social need" as a touchstone or criterion by which to test the legitimacy of
any abrogation of the primary right guaranteed by the first paragraph in each Article:
see in particular the Sunday Times case [1979] 2 EHRR 245.
Now, the content of these general principles may bear on private law issues, quite
aside from any impact they may have on public law. And there are, in my view, already
signs—at least one sign—that use is being made of them in private law, where difficult
questions involving fundamental rights arise. This is the very exercise upon which
some of their Lordships were in fact engaged in the Spycatcher interlocutory appeal.
The dust has settled on that remarkable piece of litigation, and we can now perceive
with a surer eye the extent to which some of the decisions made in its long passage
through the courts reveal important positions of principle.
The interlocutory appeal concerned the maintenance of interim injunctions against
the newspapers at a time when the book had already been published in the USA, and
there was no ban on the importation of copies here. Lord Templeman said ([1987] 1
WLR 1248, at 1296F-G):
. . . this appeal involves a conflict between the right of the public to be protected by the
Security Service and the right of the public to be supplied with full information by the press.
This appeal therefore involves consideration of the ECHR . . .
He went on to cite Art 10, and the Sunday Times case; and he concluded that continued
restraint on the press was necessary.
Re-reading that speech, I think it particularly interesting to notice what Lord
Templeman does not say. He does not assert that ECHR is part of English law. No one
can sensibly suppose that Lord Templeman purported to incorporate ECHR without
saying so. It follows that the necessary basis of his reasoning is that the ECHR
jurisprudence is a body of legal material to which the common law may legitimately
have regard in arriving at the right result when faced with a difficult issue involving a
conflict of rights.
So, in private law cases of this kind, the door is open for the use by the English courts
of the Convention texts as a tool in the development of the common law. More, I think,
ought to be done: there is for example scope for the elaboration of a respectable right of
privacy by building on the cause of action in confidentiality and by reference to Art 8.
But I am concerned with public law issues.
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 October, 1992
Is there any reason why a similar process may not be employed in public law? There
is an elementary difference between the two forms of litigation, which needs to be
noticed for the purposes of this discussion. The court, first instance or appellate,
dealing with an injunction application in a private law case is a court of merits: it
balances the relevant factors for itself. By contrast, of course, the judicial review court
conventionally merely supervises the body reviewed to ensure that its decisions are
taken according to the public law standards encapsulated in Lord Diplock's trilogy in
CCSU [1985] AC 374. This elementary legal fact generates the question: is the
deployment of the substantive content of ECHR as a tool for the further development
of judicial review an impermissible exercise, because it would distort the role of the
public law court by turning it into a court of merits, a primary decision-maker? Put
more shortly, would such a judicial initiative undermine the constitutional balance
between the Judiciary and other public bodies having governmental functions, notably,
of course, the government of the day and local authorities?
It is important at this point to recognize the striking contrast, in the development of
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public laws over the last twenty years, between the vigorous and increasingly
sophisticated growth in procedural judicial review and the relatively static position
occupied by substantive review. The doctrine of legitimate expectation has, as its
parent, the old notion of natural justice; yet it stands at a considerable distance from the
twin Latin tags which used to be thought to be the whole content of natural justice:
Audi alterant pattern and Nemo judex in causa sua. But save for Lord Diplock's
substitution of the word "irrationality" for "unreasonableness", Wednesbury has
stood still; indeed some recent formulations, such as Lord Diplock's reference to logic
and morals in CCSU, and Lord Brightman's observations in Pulhofer, suggest if
anything an increasingly restrictive approach. Why is this? The reason surely consists
in the Judges' well established recognition that since the merits of a decision in the
public law field will ordinarily have been committed by Parliament to the decision-
maker in question, they can go no further in reviewing the substance of the decision
than seeing that it is one which a rational person, addressing himself to the right issues,
could have arrived at. On this basis, it might be thought there was little room for
conceptual development beyond the existing formulations by Lord Greene and Lord
Diplock; and so far as any appeal to ECHR principles invokes in the court a more
"hands-on" approach, it is ipso facto liable to infringe these constitutional proprieties.
And we must certainly face the fact that the prevailing view among English lawyers
with expertise in the jurisprudence of the ECHR is that the "pressing social need" test
is tighter than the common law Wednesbury principles.
The first key to this problem, I believe, is not to lose sight of the distinction which I
have already articulated. Since the task is not to incorporate the ECHR, it is as much a
solicism to suppose that fundamental rights may only be advanced in the common law
by transporting lock stock and barrel the Convention jurisprudence on "pressing social
need' as it is to argue for the incorporation of the ECHR text itself. That is not the way
forward: and the true route is, conceptually at least, surprisingly simple, consisting as it
does in a recognition of the obvious. What I have in mind is this: the greater the
intrusion proposed by a body possessing public power over the citizen into an area
where his fundamental rights are at stake, the greater must be the justification which
the public authority must demonstrate. If this seems a proposition of child-like
simplicity, see what it means for the the operation in practice of substantive, as
opposed to procedural, judicial review: It means that the principles by which it is
conducted are neither unitary nor static; it means that the standard by which the court
reviews administrative action is a variable one. It means, for example, that while the
Secretary of State will largely be left to his own devices in promulgating, for example,

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national economic policy (as in the community charge-capping case), the court will
scrutinise the merits of his decisions much more closely when they concern refugees or
free speech. This would represent a conceptual shift away from Wednesbury unrea-
sonableness. Irrationality is monolithic, and is for that reason an imperfect and
inappropriate mechanism for the development of differential standards in judicial
review. I shall return to this.
Such an approach is, I believe, no more a usurpation of constitutional propriety than
is the conventional Wednesbury approach itself. No one suggests, nowadays, that the
courts behave improperly in requiring a Minister to bring a rational mind to bear on a
question he has to decide. In doing so, the court imposes a judge-made standard on the
decision-maker. To bring forward a more exacting standard where the decision-maker
proposes to prohibit the citizen from expressing his opinions or communicating
information in his possession is not in principle a different exercise.
In fact the courts do this already: let me remind you of two well-known passages
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from speeches of Lord Bridge: first, in a refugee case {Bugdaycay [1987] 1 AER 940):
[the courts are entitled, within limits] to subject an administrative decision to the more
rigorous examination, to ensure that it is in no way flawed, according to the gravity of the
issue which the decision determines. The most fundamental of all human rights is the
individual's right to life and when an administrative decision under challenge is said to be
one which may put the applicant's life at risk, the basis of the decision must surely call for the
most anxious scrutiny.
Secondly, in Brind [1991] 1 AC 696 at 748F-749B:
But I do not accept that this conclusion [viz that there is no presumption that a statutory
discretionary power must be exercised within ECHR limits] means that the courts are
powerless to prevent the exercise by the executive of adminstrative discretions, even when
conferred, as in the instant case, in terms which are on their face unlimited, in a way which
infringes fundamental human rights. Most of the rights spelled out in terms in the
Convention, including the right to freedom of expression, are less than absolute and must in
some cases yield to the claims of competing public interests. Thus, Art 10(2) of the
Convention spells out and categorises the competing public interests by reference to which
the right to freedom of expression may have to be curtailed. In exercising the power of
judicial review we have neither the advantages nor the disadvantages of any comparable
code to which we may refer or by which we are bound. But again, this surely does not mean
that in deciding whether the Secretary of State, in the exercise of his discretion, could
reasonably impose the restriction he has imposed on the broadcasting organisations, we are
not perfectly entitled to start from the premise that any restriction of the right to freedom of
expression requires to be justified and that nothing less than an important competing public
interest will be sufficient to justify it. The primary judgment as to whether the particular
competing public interest justifies the particular restriction imposed falls to be made by the
Secretary of State to whom Parliament has entrusted the discretion. But we are entitled to
exercise a secondary judgment by asking whether a reasonable Secretary of State, on the
material before him, could reasonably make that primary judgment.
This latter passage involves the proposition that the court is not the primary
decision-maker, however imperative may be the fundamental right in question; and
there will be cases, even where the standard applied by the judges is a relatively tight
one, in which there is room for differences of view within the standard. In the great
majority of instances there will be what the Convention jurisprudence calls a "margin
of appreciation" accorded to the body under review, whose primary responsibility it
was to make the decision in question.
The fact is that just as the judges have evolved the Wednesbury doctrine, so they can
refine it, and build differential principles within it. They may accord a place in our
public law to the principle of proportionality, to which I shall come in a moment; and in
doing so they may go further in articulating a doctrine by which substantive judicial
review bears more closely on the decision-maker in some areas than in others. What I

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am at pains distinctly to emphasise is that in developing the law in this way they are as
free to consider ECHR texts as any other legal text; that there is nothing which ought to
discourage their saying so by explicit reference; and that all of this, important as it is if
fundamental rights are to be safeguarded, is conceptually no different from what the
courts have already done in evolving standards of administrative conduct within the
four corners of conventional judicial review. The prospect of judicial examination of
public decisions to test their reasonableness has none of the arresting quality of a
Batman cartoon; it is regarded as an elementary necessity, a function of the rule of law
itself. But just as the citizen is entitled to expect that those having administrative power
over him will bring a rational mind to bear on the subject in hand, whatever it is, so
should he enjoy the assurance that where the subject-matter engages fundamental
rights such as freedom of speech and person, or access to the courts, any decision
adverse to him will only survive judicial scrutiny if it is found to rest on a distinct and
positive justification in the public interest.
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The third position: development of public law in practice by reference to ECHR

Now I shall turn to see how these ideas may be applied in practice. I do not propose to
attempt a lexicon of all the varying situations in which public law cases might be
decided differently if the court took the approach I am putting forward. More modestly,
I shall concentrate on three notions, which, in the present state of our law, I believe may
be enlisted as important mechanisms for the development of substantive judicial
review along the lines I have been discussing. These are: proportionality, the giving of
reasons, and the Padfield doctrine.
Proportionality
In the article which I mentioned earlier, Jowell & Lester say (p 375):
[Proportionality] is a key tool in the interpretation of the ECHR; and its use by our courts
would reduce the violations of the Convention by the United Kingdom.
Now there has been much reference in the recent public law learning to this concept,
but the courts have in fact only flirted with it. If it is to play the part which I believe it
can, it is particularly important to analyse it properly. The first stage is to see why it has
not taken root so far.
What has happened is that the courts have only recognised proportionality as a facet
or species of Wednesbury, often at the invitation or upon the concession of counsel. In
Pegasus Holdings [1988] 1 WLR 990 at 1001F, Schiemann J said:
I do not think that Mr Pannick takes issue with the adoption of the principle of
proportionality save that he regards it, in his submission, as merely being an aspect of the
Wednesbury rule.
In Exp United States Tobacco [1992] 1 QB 353 Taylor LJ said at 366G:
Mr Beloff argues that the banning of oral snuff was a disproportionate step to guard against
the perceived risk. He referred to the principle of proportionality recognised in Community
law and mentioned by Lord Diplock in CCSU as a possible future criterion for the exercise of
judicial review. However, for the purposes of this case, Mr Beloff accepted that propor-
tionality should be considered simply as a facet of irrationality.
The difficulty is that if proportionality is merely a facet of irrationality, it adds
nothing to Wednesbury and lacks all utility as a category of judicial review: indeed it is
not itself a category of judicial review at all. But if it is to take its place as a distinct
concept, then there must be cases where it may succeed as a ground of substantive
challenge, where Wednesbury would not; and this means that the court must be willing
to strike down a decision on substantive and not procedural grounds where ex
hypothesi the decision is not an irrational one. The reason why so far the courts have
been unwilling to take this step is surely the received wisdom that to do so would be to
turn the public law court into a court of merits, and so to usurp the primary function of
the decision-maker under review.

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Now, this received wisdom is the very position I have assaulted in proposing that the
judges may develop a variable standard of review according to the importance of the
rights in question: and in examination of the potential application of proportionality in
practice may help reveal the strengths or weaknesses in what I have said. Here there is
another important distinction to be drawn; and again I think it is obvious enough when
stated, but it has not so far, I believe, played any very significant part in the debates
about proportionality so far held in or out of the courts.
The distinction is between two variants, or applications, of the irrationality rule.
There is first the case where the decision under review is a finding of fact, and the
complaint is that there was no evidence capable of justifying the finding. This sort of
challenge is seen from time to time for instance in appeals on law by case stated from
subordinate tribunals, or on statutory appeals against Inspectors' (or the Secretary of
State's) decisions under the planning, and similar, legislation. This category of review
is to be contrasted with and distinguished from those cases where the subject-matter of
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the challenge is the exercise of a discretion. In the latter instance, more often than not,
there is no dispute about the primary facts. The complaint is as to the way the facts have
been perceived by the decision-maker, the order of importance he has attached to them;
or it may be against the policy which he has brought to bear on the facts. (I leave out of
account all procedural review for present purposes).
The significance of this distinction for my argument is this. In the fact-finding case,
irrationality occupies a natural and easily understood position: where the subordinate
body's task is to ascertain past facts by the appreciation of evidence, it is self-evidently
unreasonable for him to reach a conclusion which the evidence cannot support; he has
manifestly failed to bring a rational mind properly to bear on the subject. But this is
very rarely an apt model by which to characterise substantive review in a discretion
case. Sometimes, of course, such a case succeeds when the decision-maker falls foul of
that other arm of Wednesbury, the requirement to have regard to all relevant
considerations, and to nothing else. Even there, since Lord Scarman's endorsement of
the CREEDNZ case (to which I have referred), what are relevant considerations will
often be for the decision-maker himself to decide, unless of course the empowering
statute has laid it down for him. But, at any rate where the decision is taken by a public
body with a sophisticated bureaucracy in support—typically government, it will be
relatively hard to find a case where a relevant consideration has literally been
altogether left out of account, and even harder to find one where the decision cannot be
supported by any rational process of thought whatever.
The truth is that the most interesting, and important, types of challenge to
discretionary decisions—certainly those involving fundamental rights—are not usu-
ally about simple irrationality, or a failure to call attention to relevant matters. They are
much more likely to be concerned with the way in which the decision-maker has
ordered his priorities; the very essence of discretionary decision-making consists,
surely, in the attribution of relative importance to the factors in the case. And here is
my point: this is precisely what proportionality is about. There is no room for it at all in
the fact-finding case; but if we are to entertain a form of review in which fundamental
rights are to enjoy the court's distinct protection, the very exercise consists in an
insistence that the decision-maker is not free to order his priorities as he chooses,
confined only by a crude duty not to emulate the brute beasts that have no
understanding (as the marriage service has it); an insistence that he accord the first
priority to the right in question unless he can show a substantial, objective, public
justification for overriding it. Proportionality is surely the means of doing this. It is a
ready-made tool in our hands.
It will be said that this approach falls foul of one of the received nostrums in our
public law, one which time and again is successfully deployed by respondents facing
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challenges where the real complaint is only about the merits of what has been done: the
rule that the relative weight to be accorded to the factors in play is always and only for
the decision-maker to decide. Again, this negative principle is correctly in place where
the case concerns the decision-maker's appreciation of factual evidence; in discretion
cases, it is obviously and rightly in place where the subject-matter is economic policy,
the charge-capping litigation shows; and no doubt in other instances where fundamen-
tal rights are not involved. But if the issue is freedom of speech or person or the like,
the application of this principle would mean that the decision-maker is at liberty to
accord a high or low importance to the right in question, as he chooses. This cannot be
right.
What is therefore needed is a preparedness to hold that a decision which overrides a
fundamental right without sufficient objective justification will, as a matter of law,
necessarily be disproportionate to the aim in view. It will be misleading and unhelpful,
not to say something of an affront to the decision-maker, to categorise thse cases in
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Wednesbury terms. Despite their primacy, fundamental rights may occupy different
places in the hearts of different reasonable people; if a government or a local authority,
perhaps too much in love with a particular policy objective, were to take a decision
which curtails free speech for no very convincing reason, to excoriate it as having lost
its senses looks a little too much like sending people with unacceptable politics to the
psychiatric hospital. The deployment of proportionality sets in focus the true nature of
the exercise: the elaboration of a rule about permissible priorities.
If the courts do go down this road, many problems will remain and will have to be
worked through case by case. In particular, the judges will have to grapple with the
need to build principles for the ascertainment of what is to count as a permissible
justification for the abrogation of a fundamental right. For the reasons I have given,
there is nothing to prevent their looking to the Strasbourg jurisprudence if it is felt to
offer assistance. They are likely to take a stricter view, for example, of such issues as
the length of time in which entrants to the United Kingdom may be detained pending a
decision by the immigration officer or Secretary of State; and the new approach is
likely to colour their perceptions of problems relating to contempt of court by
publication and the right of access to an independent or judicial tribunal for persons
detained pending their removal as being conducive to the public good. Instances may
no doubt be multiplied; certainly I cannot give further and better particulars in advance
and in the compass of this lecture.
Reasons
If this approach were to commend itself to the judiciary, another rule of public law will
require revision: that public decision-makers owe no general duty to give reasons. I
shall not go into the existing case-law on the subject here. Many distinguished
lawyers—the All Souls-JUSTICE Committee, Sir William Wade, Woolf LJ—believe
that the absence of such a duty is a serious shortcoming in our law. If so, it is doubly so
in a case where a fundamental right is involved. But the way forward may not be to try
and dislodge the weight of authority which favours the present position, but to take a
simpler approach which follows the logic of what I have so far been contending.
Where the putative vice of a decision is that it is Wednesbury unreasonable,
knowledge of all the reasons behind it is often unnecessary to determine the issue: to
adopt Glidewell LJ's language in the discovery case of Exp Harrison, what matters is
the terminus rather than the route by which it is arrived at. But where the issue is
whether the abrogation of a right is disproportionate to the end in view, the position is
surely different. Once it is shown by the applicant that the decision indeed abrogates
his right, he will succeed unless the respondent shows a sufficient justification. But this
means that such a respondent will always have to explain himself to the court, whether

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or not he has done so to the applicant, on pain of losing the case peremptorily. In short,
the court will require reasons. Yet this is far from a proposal to introduce a
revolutionary doctrine, at odds with the existing learning. It does no more than build on
materials already to hand: the signs in the books that where no reasons are given the
court may infer that there was no good reason: and the observations of the Master of
Rolls in Huddleston [1986] 2 AER 941 that generally speaking public bodies subject to
judicial review should be ready, like the judges of inferior courts, to assist the court
with full explanations of what they have done.
Thus the significance of the giving of reasons, at any rate to the court, in cases of the
kind in question is that it becomes an integral part of the judicial review process, and
not merely an obligation that may be owed to an applicant according to whether there
happens to be a statutory duty (as in the planning cases) or a legitimate expectation has
been generated. And, of course, once it is perceived that the court will require reasons
to be given to it in all cases involving fundamental rights, respondents will rapidly see
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there is little point in withholding reasons from potential applicants at an earlier stage.
So the practice of giving reasons will become established. There may well be
difficulties in cases where there is a question touching national security; these will have
to be faced. There are of course situations where it is the court's duty to safeguard the
security of the State, as much of the PII litigation shows; though recent political
initiatives as regards openness for the Security Services suggest that it is not
necessarily best served by a blank wall with no doors or windows.
Padfield
You may have wondered why I have included this old stalwart in my menu for the
development of the law relating to fundamental rights. The Padfield rule is best
regarded as a rule of statutory construction, and thus a judicial review based on it as a
case of illegality, not irrationality. It sets limits to the purposes for which apparently
unfettered statutory power may lawfully be used, and in my view, in a discretion case it
has more utility and more sense to it than the Wednesbury blunt instrument. My interest
in it for present purposes is this: the courts have insisted that statutory power may not
be used save for the purpose for which it was conferred, of which purpose they are the
judge. Given this foundation, we would erect no more than a modest structure upon it
by presuming that a statute's purpose cannot include or permit any interference with
fundamental rights; and that to justify such interference, and to rebut this presumption
of construction, the respondent would have to show that there is only one possible
interpretation of the statute, and that that interpretation permits the interference. I
should note in passing that such a limitation on the use of apparently unfettered
statutory power may seem close to the very argument that was rejected by House of
Lords in the Brind case; but the argument there foundered on the rocks of incorporation
of ECHR, which I have already repudiated.
This approach would mesh with the use of proportionality which I have already
discussed. The decision-maker would first have to show that the interference was in
principle permitted: that he gets through the door of the refined Padfield rule which I
have briefly elaborated. Otherwise the decision would fall to be struck down, whatever
its public interest merits. If he gets through the door, he must still show that his action
was not disproportionate to the aim in view, by demonstrating an objective and
substantial justification on the facts.
The potential importance of this refinement of Padfield has a deeper aspect. It is a
commonplace in discussions about the possible statutory incorporation of ECHR, or
the enactment of a Bill of Rights, that such initiatives run into severe intellectual
difficulties over the sovereignty of Parliament: a Bill of Rights, to have any reforming
force, must be an entrenched law by which the validity of other law falls to be tested;
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but since Parliament could unmake it as readily (in legal, though perhaps not political,
fact) as it has enacted it, it could not be securely entrenched at all. Some of our best
legal thinkers have devoted formidable intellectual energy, and ingenuity, to this
problem: Sir William Wade, in his Hamlyn Lectures for 1980, thought that the solution
of the problem was to change the judges' oath. Now, I am not so venturesome as to
propose the abolition of Parliamentary sovereignty, even if such an outrageous
suggestion were not visited by an address to Her Majesty by both Houses to remove me
after less than five months in office. My argument is a much more modest one. If the
judges are to construe statutes which confer discretion as not empowering an
interference with fundamental rights, unless on the Act's only possible construction
that were permitted, what will the position be if a respondent contends that the statute
in question allows him to take the action complained of without providing a substantial
justification? Such a stance would entail the necessity to argue that the Act permits an
interference with fundamental rights which is not objectively justified at all. It may be
hard, given what I believe to be the relatively benign condition of our institutions of
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government, to envisage such a case. But its possibility is the engine by which the calls
for a code of written rights are fuelled.
Whatever may be the political issues engaged by such calls for entrenchment, into
which I have said at the outset that I will not enter, it seems to me that much of the
concern which gives them credence may be allayed by some approach to the
construction of statutes conferring power such as I have put forward. In Anisminic the
House of Lords overrode the apparently plain words of an ouster clause by recourse to
the doctrine of nullity (which, incidentally, as a doctrine I hope will soon be finally
discarded by the courts: but that is another story); and since that case, clauses
purporting to oust certiorari have almost fallen into disuse, though there are interesting
examples in the British Nationality Act and the Interception of Communications Act.
In the end, however, Anisminic is a case about statutory construction, not the
metaphysic of nullity. To oust the court's power of review is necessarily to put some
party above the law, or, at least, to make it and not the court the judge of what the law is,
which is the same thing. The courts will presume against the conferment of such a
power. My point is that precisely the same approach may be taken where, or if ever,
there is a naked assertion of a power to interfere with fundamental rights without a
demonstrated justification. The courts will presume against it. To come full circle to
my beginning, it is not I think too comfortable a notion to suppose that such a strong
rule would possess at least much of the force enjoyed by entrenched constitutional
provisions in other jurisdictions.
Conclusions
I am conscious that much of what I have said is about the language in which we should
classify legal complaints, and I have given no clear-cut expression to exact nature or
extent of the differences in judicial decisions which these ideas may promote in live
cases. But this is, I think, is no more than a characteristic of the means by which the
common law advances. My thesis at the end may be summarised thus: we may have
regard to ECHR (and, for that matter, other international texts) but not think of
incorporating it; we should apply differential standards in judicial review according to
the subject-matter, and to do so deploy the tool of proportionality, not the bludgeon of
Wednesbury; that a function of this is to recognise that decision-makers whose
decisions affect fundamental rights must inevitably justify what they do by giving good
reasons; and that the judges should not construe statutes which are said to confer power
to interfere with such rights any more favourably than they would view a clause said to
oust their own jurisdiction: indeed such a clause is but an example of a denial of one
fundamental right. I think this is, in the end, a modest way forward, involving no sea-

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change in the law; but the growth of the common law has always been an incoming
tide, not a storm of hurricane force; and it is better so; the tide leaves no wake of
destruction when it ebbs. I propose no assertion of undue power by the judges over the
elected Executive; and the only real complaint against all this would be in the mouth of
someone who asserts that governmental authority, because it is there by popular vote,
should possess the power to override fundamental rights without compelling good
reason.
There is much I have not said. I have barely referred to the law of the EEC, which
will provide increasingly compelling comparators to give intellectual force to much of
what I have said. I have not paid tribute, which I ought to do, to the spirit in which to
my certain knowledge much government decision-making is carried on. The motive of
these reflections has not been to confront or reveal any apprehension of oppressive
administration by government as we have recently known it, but to suggest some
modest accretions to our law in the interest of arriving at a settled jurisprudence whose
moral and intellectual claims are at least the equal of constitutions where rights are
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enshrined in written, primary norms. But for the imperfections which I have men-
tioned, and for many others which you will have identified, and for the length of this
lecture, I hope that you will indulge me.

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