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Public Law

1995

Law and democracy

John Laws Subject: Constitutional law. Other related subjects: Administrative law Keywords: Constitutional law; Executive power; Judiciary; Politics

*P.L. 72 In 406B.C., towards the end of the Peloponnesian War, the Athenians were victorious in a sea battle at Arginusae, to the south of Lesbos. But 25 Athenian ships had been lost, with their crews. A north wind, of the kind that still today blows very strong in those beautiful but unpredictable waters, had hindered any rescue. In Athens, still governed by its direct democracy, the eight commanders were blamed. In their turn they 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 have been entitled to have his separate case judged on its merits. A motion was brought to challenge the procedure as invalid. The presiding committee had to decide whether to accept this motion, or to allow an immediate vote on a resolution to try all the generals together. They were intimidated by the people, the democratic voice. There were threats of impeachment and arrest. The presiding committee gave way. The eight generals were tried together on a single vote. They were condemned to death. Six were executed: they included the son of the great statesman, Pericles. The other two, as the historian Bury coyly puts it, “had prudently kept out of the way”. But the presiding committee had not been unanimous. Unanimity was not required for their ruling. One member, the philosopher Socrates, had stood out against the illegal and unjust procedure for which the people bayed, although in vain. Afterwards the Athenians repented. They knew that what had been done was illegal. Socrates had been right, though when, seven years later, he reminded his own accusers of the fact, it did not save him from sentence of death. Democrats, no doubt, do not like to be reminded of democracy's failings.

In this article I propose to deal with what I conceive to be the intricate relationship between the ideal of democracy and the ideal of law, not in fifth century Athens; in twentieth century England. But, despite the shame of Arginusae's aftermath, this is a time at which to pay tribute to Athens: the year 1994 is an anniversary of democracy: 2500 years ago, *P.L. 73 Cleisthenes established the reforms which set in place the democratic constitution under which those extraordinary achievements in the arts, in political thought, in drama, architecture, and philosophy were accomplished or inaugurated in that small city­state. I shall be saying that a democratic constitution is in the end undemocratic if it gives all power to its elected government; at the same time democratic institutions are a

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necessary­­though not sufficient­­condition for the establishment of fundamental freedoms. We should not forget, not least in the welter of present­day accusations against the modern Greek state, that the Athenians invented democracy.

“The ideal of law” is no doubt a grand phrase, and I do not intend to embark on a philosophical discussion of the nature of law. What I am concerned with is the difference between those interests in a decent society whose service and protection is distinctly the function of the law, especially our public law, and those which distinctly lie within the province of the democratically elected legislature and government; and with the relationship between the two. This is a large canvas, and it is impossible to do it comprehensive justice within the compass of a single article of reasonable length; but I hope, at least, that what I have to say may provoke further thought by others who, like myself, are concerned with the service delivered to the people by our unwritten constitution at a time when many of its facets are increasingly subject to critical scrutiny.

Judges and politics

The template for this article was the annual Public Law Project lecture which I gave in the summer of 1994 with the title “Law and Politics­­No­go Areas for Judges?”. The title is apt for the first part of my present discussion, which concerns the notion that judges should not enter into political issues. This is a proposition which needs to be addressed, since it may too easily be regarded as a mantra which inhibits dynamic evolution of our constitutional law.

I should at the outset make it clear that I am not concerned with what the English judges are or ought to be entitled to say out of court. As regards that, the strictness of the earlier position, established by what were known as the Kilmuir rules, has of course been much relaxed by the present Lord Chancellor, and judges are by and large expected to make sensible decisions for themselves about whether and in what terms to talk to the media or otherwise express their views out of court. It is by no means my purpose here to engage in the degree of effrontery to my colleagues on the bench, and for that matter to others also, which would be implicit in my pontificating about how judges generally should approach such questions. What I am concerned with is the present and future state of the law.

Next, it is necessary to dispose of the confusion and loose thinking that lies behind the proposition that the judges are not concerned with *P.L. 74 political questions. It seems to me that there has been very little rigorous reasoning as to what is meant by this. At one level it is an obvious truth: no judge should decide a question before him according to his own party political opinion; but that means only this, that he should not favour a particular resolution of a case because it would be convenient or helpful to the party for which, at election time, he proposes to vote in the privacy of the ballot­box. This is no more than a jejune truth; if a judge were seen to favour a particular party as such he would of course lose all claim to impartiality. It is no more than an instance of the rule against bias. Even outside court, a judge should no doubt appear to favour no political party, lest his extra­

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curial opinions be perceived to infect his decisions in court.

But this has nothing to do with the deeper question, whether good judicial decisions are themselves fuelled by ideals which are not morally neutral, but which represent ethical principles about how the state should be run, and in that sense may be said to be political principles. The difficulty is that the term “politics” and its cognates are ambiguous; they may be taken to refer only to party politics, or to broader issues. If one accepts for present purposes the more limited sense of the term, then it is of course uncontentious that no judge is concerned with political questions. But as I have said this establishes only that the judge should entertain no bias on personal grounds. This obvious fact has nothing to do with what I have to say.

Let me next identify a sense in which it is manifestly false that the judges do not, or should not, engage in issues which are at least concerned with political questions. It arises within the territory of modern judicial review: within that jurisdiction the judges do, and must, adjudicate in cases which involve questions of acute political controversy. The ban on viva

voce broadcasts by terrorist sympathisers 1 ; the rights of persons claiming refugee status 2 ; local government finance 3 ; a local authority's ban on hunting across its land 4 ; grant maintained schools 5 ; the disposal of nuclear waste 6 ; the government's decision to ratify the Maastricht Treaty 7 : you cannot construct a litany of the subject matter of modern judicial review without being struck by the fact that time and again it engages questions upon whose merits the politicians (and others) are in rancorous disagreement.

There is no question, as once there certainly might have been, of the *P.L. 75 judges standing aloof from such cases, or at least some of them, on the footing that the controversial nature of their subject­matter renders them unfit for judicial determination. Such a consideration is, first, irrelevant to the reach of the judge's jurisdiction. We now possess a jurisdiction in which every public body is in principle subject to the supervision of the court as regards every decision it makes. The only true exception, in the present state of the law, is the Queen in Parliament, exercising the function of enacting primary legislation, and this exception is now constrained so as not to apply where the legislation on its face is credibly asserted to be inconsistent with the law of the European Union. I shall have more to say about it. All other exceptions are apparent, not real: the dicta in

CCSU 8 about national security, diplomatic relations with foreign sovereign states, and so forth, only describe cases where it is thought (rightly or wrongly) that an intrusive jurisdiction cannot sensibly be exercised, not cases where there is no jurisdiction at all. The question left open in CCSU whether judicial review might go to the direct exercise of the

Royal prerogative has been concluded at Divisional Court level by Ex p Bentley 9 in favour of the existence of such a jurisdiction.

Other exceptions might be thought to consist in those cases where statute has apparently excluded the jurisdiction of the court, as for example by a “no certiorari” provision. The most celebrated instance is the landmark case of Anisminic 10 ; but there the House of

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Lords found the means to uphold the court's jurisdiction­­and thus the rule of law­­despite 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” provisions 11 ; but the point of principle is that such cases do not, and cannot, mark any systematic limitation of the court's jurisdiction, so as to amount to an axiom of the constitution, a rule which is logically prior to the court's power and thus in part at least defines that power. Whenever the bite of an exclusory provision is challenged, the issue will always be one of statutory construction, and the construction of statutes is always and entirely within the keeping of the courts. This is true even of Article 9 of the Bill of Rights 1688:

… the freedom of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament.

In Pepper v. Hart 12 Lord Browne­Wilkinson offered a construction of *P.L. 76 Article 9 13 en route to his conclusion that there was no legal inhibition upon the courts, in a proper case from looking at Hansard as an aid to the construction of main legislation. The Bill of Rights was treated as a statute like any other. It has no primordial force. No doubt the preservation of free speech in Parliament without the risk of civil or criminal penalty is so vital a constitutional necessity that the courts­­in contrast to the House's decision in Anisminic ­­will continue hereafter to construe Article 9 so as to accord the widest latitude to what Parliamentarians may say in the execution of their office. But the reach of Article

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

Thus, save as regards the Queen in Parliament, there is in principle always jurisdiction in the court to review the decisions of public bodies.

So the subject­matter of a putative judicial review cannot be consigned outside the court's jurisdiction on the footing that the merits of the decision under challenge are politically controversial. Not only that, however: the political nature of the case is no more a ground for refusing relief as a matter of discretion than it is for denying the court's jurisdiction. In

the national security context 15 (and some others) it is of course true that the judges still decline to go into the issues with the intrusive rigour that they would apply in other areas. They do so partly out of a perception that in the security cases the very exercise would publicise what must not be publicised; partly because these are fields where delicate decisions have to be made on a basis often of deep specialisation or of pure judgment rather than 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 ground only that the subject­matter is politically controversial.

We may see, then, that a judge may readily arrive at a decision, and grant relief accordingly, which, though not taken on the basis of any party political preference entertained by him, may in the result amount to a blessing or a can of worms to the party in government; and judges frequently do so.

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So the subject­matter of a case offers no inhibition to legal adjudication on grounds of its political content. It will of course be said, however, that the actual decisions made by the courts in such cases cannot themselves be described as political decisions; this is because of what is a received axiom in our public law, that a judicial review challenge will not engage the judge in a trial of the merits of the decision impugned. *P.L. 77 There is an exception, which I propose for present purposes to leave out of account but which I should identify; it arises where the statute authorising the action which is challenged requires some precedent condition to be established before the action can be taken: then, the judge must find as a fact whether the condition is met. A 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 must prove to the satisfaction of the judicial review court that the person in question falls

within the definition of “illegal entrant” in the statute. 16

But most instances of discretionary power conferred by statute are not subject to such prior conditions. In those cases, the judge cannot review the merits of what is done or proposed to be done. He is confined to an examination of the legality of the decision, which in turn will generally depend upon whether or not the decision­maker has transgressed one

or more of Lord Diplock's trilogy of rules in CCSU 17 : illegality, irrationality and procedural propriety. These are however no longer exhaustive, if they ever were: for my part I

consider that proportionality ought now to be regarded as a separate head of challenge. 18 But, strictly for this part of my argument, the three traditional categories suffice to indicate the broad nature of a conventional judicial review exercise.

It is no coincidence, no happenstance (as the Americans might say), that the public law jurisdiction draws a line in principle between review on these three grounds and the business of 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 always clearly understood.

The difference has nothing to do with the extent to which the reviewed body's decision is controversial, whether in political terms or otherwise. It arises as a matter of definition from the very nature of the public power respectively lying in the hands of the courts and those whom they review. The paradigm of a public body subject to the public law jurisdiction is one whose power is conferred by statute. The statute is logically prior to it; and by the constitution it is for the courts to police the statute. But they do not act under the statute. They are altogether outside it. Their power is not derived from it; nor, ultimately, from any Act of Parliament. This state of affairs has two consequences. First, the judges have to see that the power given by the statute is not transgressed by its donee; secondly, they have no business themselves to exercise powers conferred by it, precisely because they are not the donee. Hence the essence of the judicial review jurisdiction. It vindicates the rule of law not only by confining statutory power within the four corners of *P.L. 78 the Act, but also by ensuring that the statute is not usurped by

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anyone­­including the courts themselves.

So far this may appear no more than a standard account of the public law court's functions. My purpose in giving it is first to demonstrate that the well­known limits upon the jurisdiction have nothing whatever to do with problems about the judges embarking upon political disputes. They are simply a function of the rule of law: the judges are no more than anyone else entitled to exercise power which legally belongs to another. It would be idle and misleading to describe this state of affairs in terms of any judicial avoidance of political controversy.

Judicial creativity and political ideals

The next path I am to take is a little less clearly mapped. Lord Diplock's judicial review criterion of illegality is plain enough: no subordinate body may exceed the express bounds of its statutory power: that is, the power which on its proper construction the Act confers.

But what of the other heads of review, Wednesbury 19 unreasonableness and procedural unfairness? They are now as elementary as illegality. In the elaboration of these principles the courts have imposed and enforced judicially created standards of public behaviour. But the civilised imperative of their existence cannot be derived from the simple requirement that public bodies must be kept to the limits of their authority given by Parliament. Neither deductive logic nor the canons of ordinary language, which are the basic tools of statutory construction, can attribute them to that ideal, since although their application may be qualified by the words of any particular statute, in principle their roots have grown from another seed altogether. In some formulations, it is true, they have purportedly been justified by the attribution of an intention to the legislature that statutory decision­makers should act reasonably and fairly; but this is largely fictitious. In recent times, before Ridge

v. Baldwin 20 it was not generally thought (to put it crudely) that administrative, non­

judicial, bodies owed such duties as to hear the other side. Before Padfield 21 it was not generally thought that it was an enforceable function of every statute conferring public power that it only justified action to promote the distinct purposes of the Act, even though the Act did not state them. Before the concept of legitimate expectation assumed the status of a substantive legal principle (whose precise date may be nicely debated), it was not generally thought that decision­makers should be prevented from departing from previous assurances as to their actions without giving those affected an opportunity to

make representations. Wednesbury 22 itself reaches back to older law; but its fruition and its maturity came 20 years and more after it was decided. It cannot be suggested that all these *P.L. 79 principles, which represent much of the bedrock of modern administrative law, were suddenly interwoven into the legislature's intentions in the 1960s and 70s and onwards, in which period they have been articulated and enforced by the courts. They are, categorically, judicial creations. They owe neither their existence nor their acceptance to the will of the legislature. They have nothing to do with the intention of Parliament, save as

a fig­leaf to cover their true origins. We do not need the fig­leaf any more. 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,

prescriptive 24 ; they are about how powerful people ought to behave. Much of politics in any ordinary sense of the term is about how powerful people ought to behave. It is not on the face of it easy to see why this class of standards, created by the judges, should be categorised as wholly apolitical while other classes, also concerned with the quality of public decision­making, should be roundly and unarguably regarded as well within the political sphere.

One thing is quite clear: if these public law rules may be described as political in nature, there is no question of the judges repenting them on such grounds; no question, either, of anyone else doing 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 many of them, including of course the government, are democratically elected. But in fact and in substance, these principles are accepted across the party political divide as an uncontentious and necessary element in the conduct of public life in England. There are many who say they do not go far enough. If the sinews of proportionality grow as strong in

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

Let me now try to gather and express more tightly the effect of these reflections, as a prelude to all that I have yet to say in the endeavour to *P.L. 80 penetrate the relationship between the ideals of democracy and law. We have these following propositions:

(1) The substantive principles of judicial review 26 are judgemade, owing neither their content nor their authority as law to the legislature.

(2) Yet they confine the scope within which discretionary decisions may be taken under statute, even though on a bare reading of the Act the power conferred would have a greater reach.

(3) These principles are not morally colourless­­far from it. They constitute ethical ideals as to the virtuous conduct of the state's affairs. It is essential to my theme (and anyway important) to recognise the moral force of the basis on which control of public power is effected by the unelected judges.

(4) The established limits of the jurisdiction are in essence set by the very same ideal which has fuelled its growth: that all public bodies should keep within the power which the law accords to them. Neither these limits, nor any other aspect of our public law as it presently stands, can usefully be explained by reference to lines of demarcation drawn on political grounds.

Distinctions between judicial and elective power

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I may now pose directly the question whether these judicial ideals ought to be described as in their nature political, though only to reformulate it, or to embark on a different and more important inquiry, in a moment. I should say first that the more direct question: are they political ideals is, I think, apt to promote conceptual confusion. The adjective “political” is what some philosophers used to call a portmanteau word­­rather like “good”. You may

have a good book, a good man, or (as Tom Stoppard said) 27 a good bacon sandwich; all the word's uses share (at least) the idea of commendation, but things are good in different senses. The notion which is central to issues or ideas which we might as a matter of language call political is, I think, that in one way or the other they all concern the way in which the state is to be run, the people are to be governed. In that sense the principles of judicial review are undoubtedly political. But this tells us close to nothing. What in reality I am in search of is a rigorous appraisal of the true distinctions between judicial and elective power. Since, as I believe, the present reach of judicial review is *P.L. 81 not now considered, in most quarters at least, to present or to threaten any unacceptable encroachments upon the legitimate authority of governments or other elected bodies, this exercise would very largely be of academic interest only, were the public law jurisdiction to remain static; but I do not think it will, nor should it. The true differences between judicial and elective power are of the greatest importance if we are to entertain a respectable theory as to the basis on which judicial review may hereafter develop­­as I hope it does­­ towards offering an explicit and systematic protection of constitutional rights. Might the judges in the future, if they claim a greater jurisdiction to establish and insist upon fundamental rights, affront the imperative of democracy? Might they stake a claim, however well­intentioned, which transgresses the proper bounds of their unelected power? What would be the position if they sought to review main legislation?

The true distinctions between judicial and elective power cannot be arrived at by a merely factual account of what the judges do and what governments or Parliaments (or local authorities) do. This is so because of the logical nature of an unwritten constitution. Though there are of course established constitutional norms, some of considerable antiquity, the absence of what I will call a sovereign text means that the legal distribution of public power consists ultimately in a dynamic settlement, acceptable to the people, between the different arms of government. It is not written in stone; it is not even written in paper. It cannot therefore be ascertained by reference to the pages of a book whose authority is unquestioned, scriptural. The settlement is dynamic because, as our long history shows, it can change; and in the last three hundred years has done so without revolution. In the end, it is not a matter of what is, but of what ought to be. The journey to find it is a search for principle, not the unfolding of a rule book. Let me embark upon it.

Democracy and fundamental rights

As a matter of fundamental principle, it is my opinion that the survival and flourishing of a democracy in which basic rights (of which freedom of expression may be taken as a paradigm) are not only respected but enshrined requires that those who exercise

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democratic, political power must have limits set to what they may do: limits which they are not allowed to overstep. If this is right, it is a function of democratic power itself that it be not absolute.

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

fundamental rights. 28 This is­­fortunately­­a subject much in vogue nowadays; though pleas to incorporate the ECHR are of course far from new. While, along with many others, I would welcome incorporation, I am not concerned in this article merely to add my name to the call; it has repeatedly been made by voices with much greater *P.L. 82 authority, and

there is of course much literature on the subject. 29 I will only say this: as is well known, the idea of incorporation is beset by conceptual difficulties so long as we adhere to what I believe to be the outdated, or perhaps misunderstood, notion of the sovereignty of Parliament. What I am to address is not the maze of conundrums through which the incorporators have to find a path, but rather the extent to which the concept of fundamental rights ought in principle to affect the reach and length of democratic power­­ incorporation or no. I will do it by reference to freedom of expression. Other rights, which in the compass of this lecture I will not discuss, would call for analogous, but adapted, arguments.

I will start with the notion of extremism. Generally, I would say that an extremist opinion is one which admits of no exceptions. Its hallmark is the claim to a monopoly of the truth. In the party political sphere, extremism is thought to be the province of the far left and the far right. But it cannot be defined in such terms; extreme liberalism may lay as dead a hand on freedom as the others. Its danger is that it may make intolerance and cowardice respectable. A heartfelt conviction, for example, of the evils of racial or sexual prejudice

may all too easily lead to a call for the suppression of voices thought to extol them. 30 It leads to the neo­fascist corruption of the language exemplified in what is called “politically correct” speech. I should here make two connected points. The first is, I take it, as obvious as it is unoriginal: the vice of such prejudices (or any other, for that matter) is no less a vice only because its adherents are free to commend it; and it may be as roundly and rightly condemned by one who would not think of silencing its supporters as by another who only approves the expression of opinions he finds congenial. The second, no less obvious, is to notice the important distinction between the substance of an opinion held, which may be thoroughly justified, and its putative imposition on others, which is generally unjustified. I do not mean to say that one should not, with all the energy at one's command, seek to persuade the holder of barbarous views to recant; but to entertain the notion that he can or should be compelled to do so is to treat him as a slave.

Extremism may be found in the substance of a base opinion; but it may consist as surely in a preparedness to suppress views at variance with an opinion which itself is essentially decent. In both, the claim to a monopoly of the truth is urged. The latter case, however, carries the *P.L. 83 seeds of an insidious danger: it is that the very merits of the opinion being promoted may serve to blow the trumpet of suppression louder, and to weaken the

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resolve of any who insist that the holder of a vile view is entitled to have his say. All this, of course, takes for granted the value to be attributed to free speech, about which I shall have more to say. But the distinction between the two forms of extremism to which I have pointed uncovers a deeper question, which engages the role of government and therefore of the law. An individual citizen has little power to suppress the opinions of others. He may be a petty tyrant in his home or at his work, but his spurious writ can never run very far. A government, however, is a legally established hegemony; its very function is to rule; and though it may exhort and encourage, it rules in the end by force of compulsory law.

Yet however pressing the force of law may be, it cannot, short of vindicating a process we would recognise and condemn as brain­washing, itself exact a change of mind in any man. Government may persuade, but the attempt to do so is a right it shares with the citizen, not a prerogative it enjoys alone. It cannot enforce good opinions, save by obviously unacceptable means. It cannot therefore be its legitimate task to try. It follows that in the exercise of its true prerogative, which is the use of legal power, it is ineluctably committed to the primacy of pluralism. Its power is circumscribed by the very fact that the citizen's will is free.

The government's constituency is the whole body of such citizens; and a democratic government can have no remit but to act in what it perceives to be their best interests. It may get it wrong, and let the people down. But it cannot knowingly do so, for that would be to act in bad faith; and no government can justify its own bad faith by pointing to the fact that it was elected by the people. That would be to assert that the electorate endorsed in advance the government's right deliberately to act against its interests, which is an impossible proposition.

Thus the free will of every citizen is a premise of all the government's dealings with the people, and so conditions its duty to act in good faith towards them. It cannot fulfil its duty without recognising this; but such a recognition entails the need to accord fundamental rights, high among them the right of freedom of expression. This is first because, as I have

said elsewhere, 31 freedom of expression is a corollary of the power of reason, for whose possession the quality of free will is a necessary condition; and secondly because man lives in society, bound to communicate with fellows of his kind. The power of reason transforms his capacity to do so, because it endows him with the gift of language. If the only inhabitant of the Universe were a single individual, he would not speak, but grunt. Whatever natural intelligence he might enjoy, he could only apply it to physical things. He would have no basis on which to formulate moral principles, and no conception of rights or duties. *P.L. 84 Indeed he would have no rights or duties. But the human situation is far removed from such desolation; society makes relationships inevitable; and since its denizens are free and rational, the very fact that they live in communion entails their making judgments about how one should behave towards another. Nothing is more natural to their condition; and so to stifle free speech is to deny or frustrate humanity's very distinguishing characteristic.

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Any but the crudest society will be ordered, will have, in whatever form, a government. Its citizens will make judgments about the government. The government can no more deny their right to do so, without also denying their nature as free and rational beings, than it can deny their right to make judgments upon each other. But more than this, the government cannot be neutral about free speech. If it is not to be denied, it must be

permitted; there is no room for what the logicians would call an undistributed middle 32 ; and if it must be permitted, it must be entrenched and protected, since its vindication is not a matter of legitimate political choice but an axiom of any community of free human beings. In the end the government's duty to good faith requires it to accord this fundamental freedom to the people.

The imperative of higher‐order law

Now it is only by means of compulsory law that effective rights can be accorded, so that the medium of rights is not persuasion, but the power of rule: the very power which, if misused, could be deployed to subvert rights. We therefore arrive at this position: the constitution must guarantee by positive law such rights as that of freedom of expression, since otherwise its credentials as a medium of honest rule are fatally undermined. But this requires for its achievement what I may call a higher­order law: a law which cannot be abrogated as other laws can, by the passage of a statute promoted by a government with the necessary majority in Parliament. Otherwise the right is not in the keeping of the constitution at all; it is not a guaranteed right; it exists, in point of law at least, only because the government chooses to let it exist, whereas in truth no such choice should be open to any government.

The democratic credentials of an elected government cannot justify its enjoyment of a right to abolish fundamental freedoms. If its power in the state is in the last resort absolute, such fundamental rights as free expression are only privileges; no less so if the absolute power rests in an elected body. The byword of every tyrant is “My word is law”; a democratic assembly having sovereign power beyond the reach of curtailment or review may make just such an assertion, and its elective base cannot immunise it from playing the tyrant's role.

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

described, 33 in a review of a book to which I contributed, 34 as a plea for judicial supremacism, and since as I have made clear I consider that the power of democratically elected bodies must be subject to limits, I must temper this discussion with what no doubt is obvious enough, namely an emphatic insistence on the vital necessity of democratic institutions of government. A people's aspiration to democracy and the imperative of individual freedoms go hand in hand. Without democracy the government is by definition autocratic; though it may set just laws in place, and even elaborate a constitution providing for fundamental rights, there is no sanction for their preservation save revolution. While (for reasons I have not the time to elaborate) I do not think the notion of

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self­determination is the best model to vindicate the pressing moral claims of democracy so far as they concern the individual voter, nothing could be more elementary than that the power of government, to stay in office and make through Parliament compulsory laws for the obedience of the people, does and must depend utterly on the popular vote. But the sanction of the polling­booth is not merely a voice at the government's shoulder, a telling whisper that if it makes laws which do not more or less appeal to the public it will be thrown from office. It represents the legal and moral fact that the power of rule is bestowed at the people's choice; and it confers on the measures passed by government a crucial moral authority. Since in the last resort the government rules by consent, the source of public power is not the strong arm of the ruler, but the people themselves.

Even so, the fundamental sinews of the constitution, the cornerstones of democracy and of inalienable rights, ought not by law to be in the keeping of the government, because the only means by which these principles may be enshrined in the state is by their possessing a status which no government has the right to destroy. I have already argued this position in relation to fundamental individual rights; now I assert it also as regards democracy itself. It is a condition of democracy's preservation that the power of a democratically elected government­­or Parliament­­be not absolute. The institution of free and regular elections, like fundamental individual rights, has to be vindicated by a higher­order law:

very obviously, no government can tamper with it, if it is to avoid the mantle of tyranny; no government, therefore, must be allowed to do so.

But this is not merely a plea to the merits of the matter, which can hardly be regarded as contentious; the need for 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 rules only by the strength of his arm, and where the only law is the ruler's dictat, we can see that any government holds office by virtue of a framework of rules. The application of the rules determines what person or party is *P.L. 86 entitled (or, under some imaginable systems, obliged) to become the government. This is a necessary, not a contingent, truth, since the institution of government is defined by the rules; were it otherwise, we are back to the case we have proposed to set aside. Richard Latham of All Souls said this over 40

years ago 35 :

When the purported sovereign is anyone but a single actual person, the designation of him must include the statement of rules for the ascertainment of his will, and these rules, since their observance is a condition of the validity of his legislation, are Rules of Law logically prior to him.

We may see the same logic at work in other texts. Here is Sir William Wade, in an article in 1955, 36 citing Salmond on Jurisprudence 37 as follows:

It [Parliamentary sovereignty] is the law because it is the law, and for no other reason that it is possible for the law itself to take notice of. No Statute can confer this power upon Parliament, for this would be to assume and act on the very power that is to be conferred.

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The reasoning is the same as Latham's: the notion of sovereignty is logically prior to the Acts of Parliament themselves. Wade also says:

What Salmond calls “the ultimate legal principle” is therefore a rule which is unique in being unchangeable by Parliament­­it is changed by revolution, not by legislation; it lies in the keeping of the courts, and no Act of Parliament can take it from them. This is only another way of saying that it is always for the courts, in the last resort, to say what is a valid Act of Parliament; and that the decision of this question is not determined by any rule of law which can be laid down or altered by any authority outside the courts. It is simply a political fact.

The importance of this passage consists in the two propositions (a) that the sovereignty of Parliament is “in the keeping of the courts”, and (b) that it is “a political fact”. The first implies that the legal source of the doctrine of sovereignty is in the judges. It is worth noticing that by and large recent generations of judges have assumed the truth of the doctrine, rather than held it to be so after adversarial argument in which the point has been contested. The second­­the political fact­­though not identical with it, calls up the formulation which I have ventured as to the basis on which state power is distributed in the unwritten constitution: it *P.L. 87 is by means of a dynamic settlement between the legal organs of government.

The thrust of this reasoning is that the doctrine of Parliamentary sovereignty cannot be vouched by Parliamentary legislation; a higher­order law confers it, and must of necessity limit it. Thus it is not, and cannot be, established by the measures which set in place the constitutional reforms of the late seventeenth century; nor by any legislation. Indeed Lord

Browne­Wilkinson's construction of Article 9 of the Bill of Rights 1688, 38 to which I have already referred, means only that no impediment may be placed on Parliamentary processes, such as, for instance, by a claim against an MP for defamation; it is no more nor less than a rule of absolute legal privilege. It has nothing to do with the question whether statutes in proper form are by law beyond challenge. Its effect is that no constraint of any

kind is to be imposed on the freedom of Parliament to debate whatever it likes. 39 That is of course a vital principle, and the courts have been at pains to respect what they regard as

Parliament's rights. 40 But it says nothing about the legal supremacy of legislation; the existence of a power in the courts to strike down a statute as inconsistent with a fundamental right or, were it to happen, with democracy itself, does not in any sense touch the freedom of members of either House, uninhibited by any law, to say whatever they choose during a Bill's passage.

So the rules which establish and vindicate a government's power are in a different category from laws which assume the existence of the framework, and are made under it, because they prescribe the framework itself. In states with written constitutions the rules are of course to be found in the text of the constitution, which, typically, will also contain provisions as to how they may be changed. Generally the mechanisms under which the

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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 those in place for the alteration of ordinary law.

But in Britain the rules establishing the framework possess, on the face of it, no different character from any other statute law. The requirement of elections at least every five years may in theory be altered by amending legislation almost as readily­­though the “almost” is important­­as a provision defining dangerous dogs. The conventions under which cabinet government is carried on could in theory be changed with no special rules at all, as could any of the norms by which the government possesses the authority to govern. The rules by which the power of a government is conferred are in effect the same as the rules by which *P.L. 88 the government may legislate upon other matters after it has gained power. In the end the sanction for the maintenance of democracy is in point of law no greater than the sanction for the maintenance of the dangerous dogs definition. But the rules for extending the life of a parliament are not quite the same, and the extent to which they are not is itself something of an irony in face of the view that democratic institutions are the best saviours of our freedoms: the strict curtailment effected by the Parliament Acts upon the power of the House of Lords to reject prospective legislation passed by the Commons, so as to define the authority of the upper House as a delaying function only, has by section 2(2) of the Parliament Act 1911 no application to a Bill containing any provision to extend the maximum duration of Parliament beyond five years. Here, then the unelected peers possess a function conferred for the protection of democracy. This aside, we have not so far established in the British state a higher­order law; but this is self­contradictory, unless we are to say that the power of Parliament is not legal power at all.

Before proceeding further I should say something of the impact of the law of the European Union upon the traditional Anglo­Saxon 41 perception of Parliamentary sovereignty, which might be said to have been fundamentally altered by the decisions in Ex p. Factortame 42 and Ex p. Equal Opportunities Commission. 43 In these cases the House of Lords held that the High Court was competent to give relief, whether by interim injunction 44 or final declaration, 45 whose effect would be to disapply main United Kingdom legislation as being incompatible with the law of the Union. Thus in the European context the courts, prompted by the *P.L. 89 E. C.J., have taken the power to supervise primary legislation passed by the Queen in Parliament. For my purposes the crucial piece of reasoning is that of Lord Bridge in the first Factortame case where he said 46 :

By virtue of section 2(4) of the Act of 1972 [the European Communities Act] Part II of the Act of 1988 is to be construed and take effect subject to directly enforceable Community

rights

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

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

British fishing vessels were to be without prejudice to the directly enforceable Community rights of nationals of any member state of the EEC.

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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 (whatever its words) as compatible with rights accorded by European law. Sir William Wade regards this development as “revolutionary”, because in his view it represents an

exception to the rule that Parliament cannot bind its successors. 47 But I do not think that is right. It is elementary that Parliament possesses the power to repeal the European Communities Act in whole or in part (I leave aside the political realities); and the most that can be said, in my view, is that the House of Lords' acknowledgement of the force of European law means that the rule of construction implanted by section 2(4) cannot be abrogated by an implied repeal. Express words would be required. That, however, is hardly revolutionary: there are a number of areas where a particular statutory construction is only

likely to be accepted by the courts if it is vouchsafed by express provision. 48 Although Factortame and EOC undoubtedly demonstrate what may be described as a devolution of legislative power to Europe, it is no true devolution of sovereignty. In legal (though certainly not political) terms, the organs of European legislation may in truth be described, for so long as the Act of 1972 remains on the statute book, as Parliament's delegates; the law of Europe is not a higher­order law, because the limits which for the time being it sets to the power of Parliament are at the grace of Parliament itself. For these reasons I do not believe that our membership of the Union, or its legal ramifications, has any fundamental bearing on my thesis in this paper, and I may return to the mainstream of the argument.

*P.L. 90 I do not of course suggest that there are circumstances presently foreseeable in which an elected government might seek to prolong its own existence by subverting the people's right to vote, or otherwise to effect fundamental and undemocratic changes in the nature of our governmental institutions. My thesis is that the citizen's democratic rights go hand in hand with other fundamental rights; the latter, certainly, may in reality be more imaginably at risk, in any given set of political circumstances, than the former. The point is that both are or should be off limits for our elected representatives. They are not matters upon which, in a delegated democracy­­a psephocracy­­the authority of the ballot­box is any authority at all. It is a premise of elective government, where free people are the voters, that these principles be observed by whoever is elected.

The separation of powers in the British constitution

Professor Robert Stevens, in his recent book The Independence of the Judiciary: The View from the Lord Chancellor's Office, 49 says:

Nothing underlines the atheorectical nature of the British Constitution more than the casualness with which it approaches the separation of powers.

Sedley J., in his review of the book 50 (he is a great reviewer), ascribes to this what he calls “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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marks our unwritten constitution that though higher­order law is an imperative required for 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.

I have so far used the term “government” indifferently as between the Legislature and the Executive. On the face of it that is a solecism which no first­year constitutional law student would be likely to commit. Everyone knows that the Executive is subject to the Legislature, 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

become a melancholy truism of our day. 51 These 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. 52 Like everything else I have said, they have nothing to do with any party political divide. The power of the House of Lords is in the last resort only to delay measures which 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 governing party­­the Executive­­on major issues.

Clearly, however, Parliament is far from being a dead letter. The force of debate may cause the government to think again: it may win the vote but lose the argument, and the press 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 section 2(1) of the Parliament Act 1911, the House of Lords may impose important defeats on the government, or may in debate express authoritative disagreement with what the Commons puts to it, and policy may be revised as a result. But in the end, for most of the time, the Executive can bend Parliament to its will.

There is a certain irony in this state of affairs. The result of the constitutional settlement of the seventeenth century, whatever the logic of the matter, was to establish the supremacy of Parliament over the King; of the Legislature over the Executive. When the government 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 Executive government has passed from the Sovereign to Her ministers, who are members of Parliament; and the very convention that requires command of a majority in the House of Commons as a condition of the right to rule has, in fact though not in name, given back the final power to the Crown, at least for most of the time; though it is exercised not by

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the Monarch but by others in Her name.

However the same convention means of course that the sovereign *P.L. 92 power in the state is effectively in the hands of an elected body. Those old battles have long ago been won. They have, however, been won at a certain cost, namely the suppression to a considerable degree of the power of Parliament as a body independent of the Executive. What has in crude terms happened since the seventeenth century is that there has been a trade­off between two ideals: one is the notion that Parliament should be sovereign; the other is that the Executive government should be democratically accountable. It has been done by clothing the Executive, previously autocratic and unaccountable, with the legitimacy of Parliament.

The power which is generally enjoyed by the Executive over the Legislature is so great that it loosens the ties between the people and their rulers. The benign force of democracy is diminished. While it rules, the Executive enjoys great autocratic power which is only indirectly vouchsafed by the elective process. But­­and this is the emphasis of my position­ ­even if Parliament enjoyed a true hegemony over the Executive, still its rule should not in the last resort be absolute: still a higher­order law would be needed for the entrenchment of constitutional rights and the protection of democracy itself.

Conclusion

We may now come full circle, and after this long discussion I can identify what seems to me to be the essence of the difference between judicial and elective power. The latter consists in the authority to make decisions of policy within the remit given by the electorate; this is a great power, with which neither the judges nor anyone else have any business to interfere. This is the place held by democracy in our constitution. It is the place of government. Within it, Parliament, even given its present unsatisfactory relationship with the Executive, is truly and totally supreme. It possesses what we may indeed call a political sovereignty. It is a sovereignty which cannot be objected to, save at the price of assaulting democracy itself. But it is not a constitutional sovereignty; it does not have the status of what earlier I called a sovereign text, of the kind found in states with written constitutions. Ultimate sovereignty rests, in every civilised constitution, not with those who wield governmental power, but in the conditions under which they are permitted to do so. The constitution, not the Parliament, is in this sense sovereign. In Britain these conditions should now be recognised as consisting in a framework of fundamental principles which include the imperative of democracy itself and those other rights, prime among them freedom of thought and expression, which cannot be denied save by a plea of guilty to totalitarianism.

For its part judicial power in the last resort rests in the guarantee that this framework will 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 the state, the bed*P.L. 93 rock of pluralism will be maintained. We have no other choice.

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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 necessarily constrained not only by a prohibition against intrusion into what is Parliament's proper sphere, but by the requirement, and the truth, that they have in their duty no party political bias. Their interest and obligation in the context of this discussion is to protect values which no democratic politician could honestly contest: values which, therefore, may be described as apolitical, since they stand altogether above the rancorous but vital dissensions of party politicians. The judges are constrained also, and rightly, by the fact that their role is reactive; they cannot initiate; all they can do is to apply principle to what is brought before them by others. Nothing could be more distinct from the duty of political creativity owed to us by Members of Parliament.

Though our constitution is unwritten, it can and must be articulated. Though it changes, the principles by which it goes can and must be elaborated. They are not silent; they represent the aspirations of a free people. They must be spoken and explained and, indeed, argued over. Politicians, lawyers, scholars, and many others have to do this. Constitutional theory has, perhaps, occupied too modest a place here in Britain, so that the colour and reach of public power has not been exposed to a glare that is fierce enough. But the importance of these matters is so great that, whatever the merits or demerits of what I have had to say, we cannot turn our backs on the arguments. We cannot risk the future growth without challenge of new, perhaps darker, philosophies. We cannot fail to give principled answers to those who ask of the nature of state power by what legal alchemy, in any situation critical to the protection of our freedoms, the constitution measures the claims of the ruler and the ruled. The imperatives of democracy and fundamental rights do not only demand acceptance; they demand a vindication that survives any test of intellectual rigour. There must always be voices to speak for them, in and out of the law. By their very nature, these imperatives require also that their enemies be given full rein to express their views. It means that the defence of these values cannot be assumed, but must always be asserted. There is no point at which there is nothing more to say; there is no moment at which they are indefensible, no imaginable circumstances in which to consign them to silence, like the oracle at Delphi when Julian the Apostate sent to it in the fourth century AD:

Tell ye the King, the carven hall is fallen in decay; Apollo hath no chapel left, no prophesying bay, No talking spring. The stream is dry, and had so much to say. You will forgive, I hope, this Grecian flourish at the end. P.L. 1995, Spr, 72­93

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

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

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

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

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

  • 7. Ex p. Rees­Mogg [1994] Q.B. 552; see R. Rawlings [1994] P.L. 254, 367.

  • 8. [1985] A.C. 374.

  • 9. [1994] 2 W.L.R. 101.

    • 10. [1969] 2 A.C. 147.

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

    • 12. [1993] A.C. 593; and see D. Oliver [1993] P.L., 5.

    • 13. at 638G­639A.

    • 14. I am not myself convinced that if a Member of Parliament were motivated by reasons of actual personal malice to use his position so as to defame, in the course of debate, an individual outside Parliament; he should not as a result be subject to the ordinary law of defamation; and Article 9 could readily be construed conformably with such a state of affairs. There is an analogy with the question whether judges should enjoy an absolute legal immunity for what they do in the course of their office (as to which there is an interesting discussion by Sedley J. in the London Review of Books, vol. 16, no. 7). And see Marshall, “Impugning Parliamentary Impunity” [1994] P.L. 509.

    • 15. as exemplified in CCSU.

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

    • 17. [1985] A.C. 374 at 410­411C.

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

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

    • 20. [1964] A.C. 40.

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

    • 22. [1948] 1 Q.B. 223.

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

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

    • 25. In “The purpose and Scope of Judicial Review”, one of the papers presented at a conference at the University of Auckland in February 1986 and published in Judicial Review of Administrative Action in the 1980s (OUP and the Legal Research Foundation Inc. 1986), Sir Gerard Brennan said this (p. 18):The political legitimacy of judicial review depends, in the ultimate analysis, on the assignment to the Courts of that function by the general consent of the community. The efficacy of judicial review depends, in the ultimate analysis, on the confidence of the general community in the way in which the Courts perform the function assigned to them. Judicial review has no support other than public confidence.

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

    • 27. In Jumpers, whose alchemy of logic and hilarity was brilliantly put across in the first production, with Sir Michael Hordern and Diana Rigg.

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

    • 29. Anyone interested in it ought not to miss Lord Lester's 1994 Paul Sieghart Memorial Lecture, “Taking Human Rights Seriously”.

    • 30. Provisions such as that contained in section 18 of the Public Order Act 1986, which criminalises the use of threatening, abusive or insulting words or behaviour which are either intended or likely to stir up racial hatred, want watching. It was enacted to assault one of society's baser vices; but there is a fine line between promoting racial tranquillity and depriving those with evil opinions of their right to free expression. No doubt there is a distinction between discouraging racial hatred in the community,

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

31.

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

32.

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

33.

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

34.

Supperstone and Goudie, Judicial Review (1992).

35.

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

36.

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

37.

11th ed. p. 137.

38.

In Pepper v. Hart [1993] A.C. 593 at 638G­639A.

39.

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

40.

As is evident from the remarks of Lloyd LJ in Ex p. Rees­Mogg [1994] Q.B. 552 at 561A­D.

41.

I use the term advisedly: some materials suggest at least the seeds of a less monolothic approach in Scotland­­see for example MacCormick v. Lord Advocate 1953 SC 396 per Lord President Cooper at pp. 412­413. The United Kingdom Parliament dates only from May 1, 1707, when the Kingdoms of Scotland and England were merged by the Treaty of Union, ratified by Acts passed in the same terms by both national Parliaments. There are interesting questions, into which I cannot go here, as to the status of these Acts, which might be said to represent a form of higher­order law vis­à­vis the Parliament of the United Kingdom. Given Article 19 of the Act of Union (which I will not set out), might it be said that the United Kingdom Parliament lacks the legal power to abolish the Court of Session in Edinburgh? (I hope so.) I should say that these brief reflections have been prompted by a paper, which Sir Thomas Bingham MR was kind enough to send me, given by Lord Hope at the Anglo­ American Legal Exchange 1994 and entitled: “The Constitutional Position of Scotland within the United Kingdom­­the Treaty of Union and the European Union”, which so far as I am aware has not so far been published.

42.

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

43.

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

44.

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

45.

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

46.

[1990] 2 A.C. 85 at 140B­C.

47.

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

193.

48.

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

49.

1993.

50.

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

51.

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

52.

In a letter published in the Independent on October 20, 1994 Earl Russell said:What must be changed if we are to have genuinely constitutional government is the power of Parliament to do whatever it likes …” But he went on: “Regretfully, I have come to the conclusion that this cannot be done in English law … The only power capable of controlling Parliament, and therefore giving us genuinely constitutional government, is the European Union. This is because, in the European Communities Act 1972, Parliament has so willed it. This is the only reason for which English judges can ever control an Act of Parliament …”His Lordship does not acknowledge that, on his own reasoning, the power of European law is no more than a function of Parliament's power; and it has not occurred to him that the judges may not be powerless to take other initiatives in the name of constitutional government.

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10/11/2015 Delivery | Westlaw UK and the suppression of racialist views; but it is uncomfortably tenuous,