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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 city-state. I shall be saying that a democratic constitution is in the end undemocratic if it
gives all power to its elected government; at the same time democratic institutions are a
necessary--though not sufficient--condition for the establishment of fundamental freedoms. We should
not forget, not least in the welter of present-day accusations against the modern Greek state, that the
Athenians invented democracy.
The ideal of law is no doubt a grand phrase, and I do not intend to embark on a philosophical
discussion of the nature of law. What I am concerned with is the difference between those interests in
a decent society whose service and protection is distinctly the function of the law, especially our
public law, and those which distinctly lie within the province of the democratically elected legislature
and government; and with the relationship between the two. This is a large canvas, and it is
impossible to do it comprehensive justice within the compass of a single article of reasonable length;
but I hope, at least, that what I have to say may provoke further thought by others who, like myself,
are concerned with the service delivered to the people by our unwritten constitution at a time when
many of its facets are increasingly subject to critical scrutiny.

Judges and politics

The template for this article was the annual Public Law Project lecture which I gave in the summer of
1994 with the title Law and Politics--No-go Areas for Judges?. The title is apt for the first part of my
present discussion, which concerns the notion that judges should not enter into political issues. This
is a proposition which needs to be addressed, since it may too easily be regarded as a mantra which

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inhibits dynamic evolution of our constitutional law.

I should at the outset make it clear that I am not concerned with what the English judges are or ought
to be entitled to say out of court. As regards that, the strictness of the earlier position, established by
what were known as the Kilmuir rules, has of course been much relaxed by the present Lord
Chancellor, and judges are by and large expected to make sensible decisions for themselves about
whether and in what terms to talk to the media or otherwise express their views out of court. It is by
no means my purpose here to engage in the degree of effrontery to my colleagues on the bench, and
for that matter to others also, which would be implicit in my pontificating about how judges generally
should approach such questions. What I am concerned with is the present and future state of the law.
Next, it is necessary to dispose of the confusion and loose thinking that lies behind the proposition
that the judges are not concerned with *P.L. 74 political questions. It seems to me that there has
been very little rigorous reasoning as to what is meant by this. At one level it is an obvious truth: no
judge should decide a question before him according to his own party political opinion; but that means
only this, that he should not favour a particular resolution of a case because it would be convenient or
helpful to the party for which, at election time, he proposes to vote in the privacy of the ballot-box.
This is no more than 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-curial opinions
be perceived to infect his decisions in court.
But this has nothing to do with the deeper question, whether good judicial decisions are themselves
fuelled by ideals which are not morally neutral, but which represent ethical principles about how the
state should be run, and in that sense may be said to be political principles. The difficulty is that the
term politics and its cognates are ambiguous; they may be taken to refer only to party politics, or to
broader issues. If one accepts for present purposes the more limited sense of the term, then it is of
course uncontentious that no judge is concerned with political questions. But as I have said this
establishes only that the judge should entertain no bias on personal grounds. This obvious fact has
nothing to do with what I have to say.
Let me next identify a sense in which it is manifestly false that the judges do not, or should not,
engage in issues which are at least concerned with political questions. It arises within the territory of
modern judicial review: within that jurisdiction the judges do, and must, adjudicate in cases which
involve questions of acute political controversy. The ban on viva voce broadcasts by terrorist
sympathisers1 ; the rights of persons claiming refugee status2 ; local government finance3 ; a local
authority's ban on hunting across its land4 ; grant maintained schools5 ; the disposal of nuclear waste6
; the government's decision to ratify the Maastricht Treaty7 : you cannot construct a litany of the
subject matter of modern judicial review without being struck by the fact that time and again it
engages questions upon whose merits the politicians (and others) are in rancorous disagreement.
There is no question, as once there certainly might have been, of the *P.L. 75 judges standing aloof
from such cases, or at least some of them, on the footing that the controversial nature of their
subject-matter renders them unfit for judicial determination. Such a consideration is, first, irrelevant to
the reach of the judge's jurisdiction. We now possess a jurisdiction in which every public body is in
principle subject to the supervision of the court as regards every decision it makes. The only true
exception, in the present state of the law, is the Queen in Parliament, exercising the function of
enacting primary legislation, and this exception is now constrained so as not to apply where the
legislation on its face is credibly asserted to be inconsistent with the law of the European Union. I
shall have more to say about it. All other exceptions are apparent, not real: the dicta in 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 Lords found the means to
uphold the court's jurisdiction--and thus the rule of law--despite the terms of the provision in question
(section 4(4) of the Foreign Compensation Act 1950). It is, as it happens, a striking feature of the
law's evolution that since Anisminic Parliament has made but modest use of no certiorari provisions
11
; but the point of principle is that such cases do not, and cannot, mark any systematic limitation of

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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 Browne-Wilkinson offered a construction of *P.L. 76 Article 913 en route to
his conclusion that there was no legal inhibition upon the courts, in a proper case from looking at
Hansard as an aid to the construction of main legislation. The Bill of Rights was treated as a statute
like any other. It has no primordial force. No doubt the preservation of free speech in Parliament
without the risk of civil or criminal penalty is so vital a constitutional necessity that the courts--in
contrast to the House's decision in Anisminic --will continue hereafter to construe Article 9 so as to
accord the widest latitude to what Parliamentarians may say in the execution of their office. But the
reach of Article 9, like that of any other statute, is for the courts to decide.14
Thus, save as regards the Queen in Parliament, there is in principle always jurisdiction in the court to
review the decisions of public bodies.
So the subject-matter of a putative judicial review cannot be consigned outside the court's jurisdiction
on the footing that the merits of the decision under challenge are politically controversial. Not only
that, however: the political nature of the case is no more a ground for refusing relief as a matter of
discretion than it is for denying the court's jurisdiction. In the national security context15 (and some
others) it is of course true that the judges still decline to go into the issues with the intrusive rigour that
they would apply in other areas. They do so partly out of a perception that in the security cases the
very exercise would publicise what must not be publicised; partly because these are fields where
delicate decisions have to be made on a basis often of deep specialisation or of pure judgment rather
than fact-finding, on whose merits the searchlights of judicial review can, so it is thought, illuminate
little or nothing. There is certainly no judicial self-restraint on the ground only that the subject-matter is
politically controversial.
We may see, then, that a judge may readily arrive at a decision, and grant relief accordingly, which,
though not taken on the basis of any party political preference entertained by him, may in the result
amount to a blessing or a can of worms to the party in government; and judges frequently do so.
So the subject-matter of a case offers no inhibition to legal adjudication on grounds of its political
content. It will of course be said, however, that the actual decisions made by the courts in such cases
cannot themselves be described as political decisions; this is because of what is a received axiom in
our public law, that a judicial review challenge will not engage the judge in a trial of the merits of the
decision impugned. *P.L. 77 There is an exception, which I propose for present purposes to leave
out of account but which I should identify; it arises where the statute authorising the action which is
challenged requires some precedent condition to be established before the action can be taken: then,
the judge must find as a fact whether the condition is met. A well-known example concerns the
Secretary of State's power to remove illegal immigrants under Schedule 2 to the Immigration Act
1971: where a proposed removal is challenged, the Secretary of State must prove to the satisfaction
of the judicial review court that the person in question falls within the definition of illegal entrant in
the statute.16
But most instances of discretionary power conferred by statute are not subject to such prior
conditions. In those cases, the judge cannot review the merits of what is done or proposed to be
done. He is confined to an examination of the legality of the decision, which in turn will generally
depend upon whether or not the decision-maker has transgressed one or more of Lord Diplock's
trilogy of rules in 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 decision-making
on the merits, as I shall seek to show; and the difference between the two, although regarded as
elementary by public law practitioners, is not always clearly understood.

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

Judicial creativity and political ideals

The next path I am to take is a little less clearly mapped. Lord Diplock's judicial review criterion of
illegality is plain enough: no subordinate body may exceed the express bounds of its statutory power:
that is, the power which on its proper construction the Act confers. But what of the other heads of
review, 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 decision-makers 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 decision-makers 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 fig-leaf
to cover their true origins. We do not need the fig-leaf any more.23
But my purpose with them is first to ask this question: judicial creations as they are, should they be
regarded as political ideals? In one sense they are certainly nothing less. They are not morally
neutral; they are, as the philosopher R. M. Hare would say, prescriptive24 ; they are about how
powerful people ought to behave. Much of politics in any ordinary sense of the term is about how
powerful people ought to behave. It is not on the face of it easy to see why this class of standards,
created by the judges, should be categorised as wholly apolitical while other classes, also concerned
with the quality of public decision-making, should be roundly and unarguably regarded as well within
the political sphere.
One thing is quite clear: if these public law rules may be described as political in nature, there is no
question of the judges repenting them on such grounds; no question, either, of anyone else doing
so--unless I suppose there are a few diehards who think that public bodies should be allowed to be

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unreasonable and unfair, perhaps on the grounds that many of them, including of course the
government, are democratically elected. But in fact and in substance, these principles are accepted
across the party political divide as an uncontentious and necessary element in the conduct of public
life in England. There are many who say they do not go far enough. If the sinews of proportionality
grow as strong in the law as the other principles, I believe it will command a like acceptance.25
Let me now try to gather and express more tightly the effect of these reflections, as a prelude to all
that I have yet to say in the endeavour to *P.L. 80 penetrate the relationship between the ideals of
democracy and law. We have these following propositions:
(1) The substantive principles of judicial review26 are judgemade, owing neither their content nor their
authority as law to the legislature.
(2) Yet they confine the scope within which discretionary decisions may be taken under statute, even
though on a bare reading of the Act the power conferred would have a greater reach.
(3) These principles are not morally colourless--far from it. They constitute ethical ideals as to the
virtuous conduct of the state's affairs. It is essential to my theme (and anyway important) to recognise
the moral force of the basis on which control of public power is effected by the unelected judges.
(4) The established limits of the jurisdiction are in essence set by the very same ideal which has
fuelled its growth: that all public bodies should keep within the power which the law accords to them.
Neither these limits, nor any other aspect of our public law as it presently stands, can usefully be
explained by reference to lines of demarcation drawn on political grounds.

Distinctions between judicial and elective power

I may now pose directly the question whether these judicial ideals ought to be described as in their
nature political, though only to reformulate it, or to embark on a different and more important inquiry,
in a moment. I should say first that the more direct question: are they political ideals is, I think, apt to
promote conceptual confusion. The adjective political is what some philosophers used to call a
portmanteau word--rather like good. You may have a good book, a good man, or (as Tom Stoppard
said)27 a good bacon sandwich; all the word's uses share (at least) the idea of commendation, but
things are good in different senses. The notion which is central to issues or ideas which we might as a
matter of language call political is, I think, that in one way or the other they all concern the way in
which the state is to be run, the people are to be governed. In that sense the principles of judicial
review are undoubtedly political. But this tells us close to nothing. What in reality I am in search of is a
rigorous appraisal of the true distinctions between judicial and elective power. Since, as I believe, the
present reach of judicial review is *P.L. 81 not now considered, in most quarters at least, to present
or to threaten any unacceptable encroachments upon the legitimate authority of governments or other
elected bodies, this exercise would very largely be of academic interest only, were the public law
jurisdiction to remain static; but I do not think it will, nor should it. The true differences between judicial
and elective power are of the greatest importance if we are to entertain a respectable theory as to the
basis on which judicial review may hereafter develop--as I hope it does--towards offering an explicit
and systematic protection of constitutional rights. Might the judges in the future, if they claim a greater
jurisdiction to establish and insist upon fundamental rights, affront the imperative of democracy?
Might they stake a claim, however well-intentioned, which transgresses the proper bounds of their
unelected power? What would be the position if they sought to review main legislation?
The true distinctions between judicial and elective power cannot be arrived at by a merely factual
account of what the judges do and what governments or Parliaments (or local authorities) do. This is
so because of the logical nature of an unwritten constitution. Though there are of course established
constitutional norms, some of considerable antiquity, the absence of what I will call a sovereign text
means that the legal distribution of public power consists ultimately in a dynamic settlement,
acceptable to the people, between the different arms of government. It is not written in stone; it is not
even written in paper. It cannot therefore be ascertained by reference to the pages of a book whose
authority is unquestioned, scriptural. The settlement is dynamic because, as our long history shows, it
can change; and in the last three hundred years has done so without revolution. In the end, it is not a
matter of what is, but of what ought to be. The journey to find it is a search for principle, not the
unfolding of a rule book. Let me embark upon it.

Democracy and fundamental rights

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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 democratic, political power must have limits
set to what they may do: limits which they are not allowed to overstep. If this is right, it is a function of
democratic power itself that it be not absolute.
I will begin the task of justifying and explaining this position by saying a little about fundamental rights.
28
This is--fortunately--a subject much in vogue nowadays; though pleas to incorporate the ECHR are
of course far from new. While, along with many others, I would welcome incorporation, I am not
concerned in this article merely to add my name to the call; it has repeatedly been made by voices
with much greater *P.L. 82 authority, and there is of course much literature on the subject.29 I will
only say this: as is well known, the idea of incorporation is beset by conceptual difficulties so long as
we adhere to what I believe to be the outdated, or perhaps misunderstood, notion of the sovereignty
of Parliament. What I am to address is not the maze of conundrums through which the incorporators
have to find a path, but rather the extent to which the concept of fundamental rights ought in principle
to affect the reach and length of democratic power--incorporation or no. I will do it by reference to
freedom of expression. Other rights, which in the compass of this lecture I will not discuss, would call
for analogous, but adapted, arguments.
I will start with the notion of extremism. Generally, I would say that an extremist opinion is one which
admits of no exceptions. Its hallmark is the claim to a monopoly of the truth. In the party political
sphere, extremism is thought to be the province of the far left and the far right. But it cannot be
defined in such terms; extreme liberalism may lay as dead a hand on freedom as the others. Its
danger is that it may make intolerance and cowardice respectable. A heartfelt conviction, for example,
of the evils of racial or sexual prejudice may all too easily lead to a call for the suppression of voices
thought to extol them.30 It leads to the neo-fascist corruption of the language exemplified in what is
called politically correct speech. I should here make two connected points. The first is, I take it, as
obvious as it is unoriginal: the vice of such prejudices (or any other, for that matter) is no less a vice
only because its adherents are free to commend it; and it may be as roundly and rightly condemned
by one who would not think of silencing its supporters as by another who only approves the
expression of opinions he finds congenial. The second, no less obvious, is to notice the important
distinction between the substance of an opinion held, which may be thoroughly justified, and its
putative imposition on others, which is generally unjustified. I do not mean to say that one should not,
with all the energy at one's command, seek to persuade the holder of barbarous views to recant; but
to entertain the notion that he can or should be compelled to do so is to treat him as a slave.
Extremism may be found in the substance of a base opinion; but it may consist as surely in a
preparedness to suppress views at variance with an opinion which itself is 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 resolve of any who insist that the holder of a vile
view is entitled to have his say. All this, of course, takes for granted the value to be attributed to free
speech, about which I shall have more to say. But the distinction between the two forms of extremism
to which I have pointed uncovers a deeper question, which engages the role of government and
therefore of the law. An individual citizen has little power to suppress the opinions of others. He may
be a petty tyrant in his home or at his work, but his spurious writ can never run very far. A
government, however, is a legally established hegemony; its very function is to rule; and though it
may exhort and encourage, it rules in the end by force of compulsory law.
Yet however pressing the force of law may be, it cannot, short of vindicating a process we would
recognise and condemn as brain-washing, itself exact a change of mind in any man. Government
may persuade, but the attempt to do so is a right it shares with the citizen, not a prerogative it enjoys
alone. It cannot enforce good opinions, save by obviously unacceptable means. It cannot therefore be
its legitimate task to try. It follows that in the exercise of its true prerogative, which is the use of legal
power, it is ineluctably committed to the primacy of pluralism. Its power is circumscribed by the very
fact that the citizen's will is free.
The government's constituency is the whole body of such citizens; and a democratic government can
have no remit but to act in what it perceives to be their best interests. It may get it wrong, and let the
people down. But it cannot knowingly do so, for that would be to act in bad faith; and no government
can justify its own bad faith by pointing to the fact that it was elected by the people. That would be to
assert that the electorate endorsed in advance the government's right deliberately to act against its
interests, which is an impossible proposition.

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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.
Any but the crudest society will be ordered, will have, in whatever form, a government. Its citizens will
make judgments about the government. The government can no more deny their right to do so,
without also denying their nature as free and rational beings, than it can deny their right to make
judgments upon each other. But more than this, the government cannot be neutral about free speech.
If it is not to be denied, it must be permitted; there is no room for what the logicians would call an
undistributed middle32 ; and if it must be permitted, it must be entrenched and protected, since its
vindication is not a matter of legitimate political choice but an axiom of any community of free human
beings. In the end the government's duty to good faith requires it to accord this fundamental freedom
to the people.

The imperative of 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 higher-order law: a
law which cannot be abrogated as other laws can, by the passage of a statute promoted by a
government with the necessary majority in Parliament. Otherwise the right is not in the keeping of the
constitution at all; it is not a guaranteed right; it exists, in point of law at least, only because the
government chooses to let it exist, whereas in truth no such choice should be open to any
government.
The democratic credentials of an elected government cannot justify its enjoyment of a right to abolish
fundamental freedoms. If its power in the state is in the last resort absolute, such fundamental rights
as free expression are only privileges; no less so if the absolute power rests in an elected body. The
byword of every tyrant is My word is law; a democratic assembly having sovereign power beyond
the reach of curtailment or review may make just such an assertion, and its elective base cannot
immunise it from playing the tyrant's role.
Since my argument may appear to some to amount to what Sedley J. *P.L. 85 recently described,33
in a review of a book to which I contributed,34 as a plea for judicial supremacism, and since as I have
made clear I consider that the power of democratically elected bodies must be subject to limits, I must
temper this discussion with what no doubt is obvious enough, namely an emphatic insistence on the
vital necessity of democratic institutions of government. A people's aspiration to democracy and the
imperative of individual freedoms go hand in hand. Without democracy the government is by definition
autocratic; though it may set just laws in place, and even elaborate a constitution providing for
fundamental rights, there is no sanction for their preservation save revolution. While (for reasons I
have not the time to elaborate) I do not think the notion of self-determination is the best model to
vindicate the pressing moral claims of democracy so far as they concern the individual voter, nothing
could be more elementary than that the power of government, to stay in office and make through
Parliament compulsory laws for the obedience of the people, does and must depend utterly on the
popular vote. But the sanction of the polling-booth is not merely a voice at the government's shoulder,
a telling whisper that if it makes laws which do not more or less appeal to the public it will be thrown
from office. It represents the legal and moral fact that the power of rule is bestowed at the people's
choice; and it confers on the measures passed by government a crucial moral authority. Since in the

Page8

last resort the government rules by consent, the source of public power is not the strong arm of the
ruler, but the people themselves.
Even so, the fundamental sinews of the constitution, the cornerstones of democracy and of
inalienable rights, ought not by law to be in the keeping of the government, because the only means
by which these principles may be enshrined in the state is by their possessing a status which no
government has the right to destroy. I have already argued this position in relation to fundamental
individual rights; now I assert it also as regards democracy itself. It is a condition of democracy's
preservation that the power of a democratically elected government--or Parliament--be not absolute.
The institution of free and regular elections, like fundamental individual rights, has to be vindicated by
a higher-order law: very obviously, no government can tamper with it, if it is to avoid the mantle of
tyranny; no government, therefore, must be allowed to do so.
But this is not merely a plea to the merits of the matter, which can hardly be regarded as contentious;
the need for higher-order law is dictated by the logic of the very notion of government under law. If we
leave on one side a form of society in which a single ruler rules only by the strength of his arm, and
where the only law is the ruler's dictat, we can see that any government holds office by virtue of a
framework of rules. The application of the rules determines what person or party is *P.L. 86 entitled
(or, under some imaginable systems, obliged) to become the government. This is a necessary, not a
contingent, truth, since the institution of government is defined by the rules; were it otherwise, we are
back to the case we have proposed to set aside. Richard Latham of All Souls said this over 40 years
ago35 :
When the purported sovereign is anyone but a single actual person, the designation of him must
include the statement of rules for the ascertainment of his will, and these rules, since their observance
is a condition of the validity of his legislation, are Rules of Law logically prior to him.
We may see the same logic at work in other texts. Here is Sir William Wade, in an article in 1955,36
citing Salmond on Jurisprudence37 as follows:
It [Parliamentary sovereignty] is the law because it is the law, and for no other reason that it is
possible for the law itself to take notice of. No Statute can confer this power upon Parliament, for this
would be to assume and act on the very power that is to be conferred.
The reasoning is the same as Latham's: the notion of sovereignty is logically prior to the Acts of
Parliament themselves. Wade also says:
What Salmond calls the ultimate legal principle is therefore a rule which is unique in being
unchangeable by Parliament--it is changed by revolution, not by legislation; it lies in the keeping of the
courts, and no Act of Parliament can take it from them. This is only another way of saying that it is
always for the courts, in the last resort, to say what is a valid Act of Parliament; and that the decision
of this question is not determined by any rule of law which can be laid down or altered by any
authority outside the courts. It is simply a political fact.
The importance of this passage consists in the two propositions (a) that the sovereignty of Parliament
is in the keeping of the courts, and (b) that it is a political fact. The first implies that the legal source
of the doctrine of sovereignty is in the judges. It is worth noticing that by and large recent generations
of judges have assumed the truth of the doctrine, rather than held it to be so after adversarial
argument in which the point has been contested. The second--the political fact--though not identical
with it, calls up the formulation which I have ventured as to the basis on which state power is
distributed in the unwritten constitution: it *P.L. 87 is by means of a dynamic settlement between the
legal organs of government.
The thrust of this reasoning is that the doctrine of Parliamentary sovereignty cannot be vouched by
Parliamentary legislation; a higher-order law confers it, and must of necessity limit it. Thus it is not,
and cannot be, established by the measures which set in place the constitutional reforms of the late
seventeenth century; nor by any legislation. Indeed Lord Browne-Wilkinson's construction of Article 9
of the Bill of Rights 1688,38 to which I have already referred, means only that no impediment may be
placed on Parliamentary processes, such as, for instance, by a claim against an MP for defamation; it
is no more nor less than a rule of absolute legal privilege. It has nothing to do with the question
whether statutes in proper form are by law beyond challenge. Its effect is that no constraint of any
kind is to be imposed on the freedom of Parliament to debate whatever it likes.39 That is of course a
vital principle, and the courts have been at pains to respect what they regard as Parliament's rights.40
But it says nothing about the legal supremacy of legislation; the existence of a power in the courts to

Page9

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 framework may be changed are different from those by
which ordinary laws, not part of the framework, may be repealed or amended; and the mechanisms
will be stricter than those in place for the alteration of ordinary law.
But in Britain the rules establishing the framework possess, on the face of it, no different character
from any other statute law. The requirement of elections at least every five years may in theory be
altered by amending legislation almost as readily--though the almost is important--as a provision
defining dangerous dogs. The conventions under which cabinet government is carried on could in
theory be changed with no special rules at all, as could any of the norms by which the government
possesses the authority to govern. The rules by which the power of a government is conferred are in
effect the same as the rules by which *P.L. 88 the government may legislate upon other matters after
it has gained power. In the end the sanction for the maintenance of democracy is in point of law no
greater than the sanction for the maintenance of the dangerous dogs definition. But the rules for
extending the life of a parliament are not quite the same, and the extent to which they are not is itself
something of an irony in face of the view that democratic institutions are the best saviours of our
freedoms: the strict curtailment effected by the Parliament Acts upon the power of the House of Lords
to reject prospective legislation passed by the Commons, so as to define the authority of the upper
House as a delaying function only, has by section 2(2) of the Parliament Act 1911 no application to a
Bill containing any provision to extend the maximum duration of Parliament beyond five years. Here,
then the unelected peers possess a function conferred for the protection of democracy. This aside,
we have not so far established in the British state a higher-order law; but this is self-contradictory,
unless we are to say that the power of Parliament is not legal power at all.
Before proceeding further I should say something of the impact of the law of the European Union
upon the traditional Anglo-Saxon41 perception of Parliamentary sovereignty, which might be said to
have been fundamentally altered by the decisions in Ex p. 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 injunction44 or final declaration,45 whose effect would be to
disapply main United Kingdom legislation as being incompatible with the law of the Union. Thus in the
European context the courts, prompted by the *P.L. 89 E. C.J., have taken the power to supervise
primary legislation passed by the Queen in Parliament. For my purposes the crucial piece of
reasoning is that of Lord Bridge in the first Factortame case where he said46 :
By virtue of section 2(4) of the Act of 1972 [the European Communities Act] Part II of the Act of 1988
is to be construed and take effect subject to directly enforceable Community rights ... This has
precisely the same effect as if a section were incorporated in Part II of the Act of 1988 which in terms
enacted that the provisions with respect to registration of British fishing vessels were to be without
prejudice to the directly enforceable Community rights of nationals of any member state of the EEC.
The effect is that section 2(4) of the European Communities Act falls to be treated as establishing a
rule of construction for later statutes, so that any such statute has to be read (whatever its words) as
compatible with rights accorded by European law. Sir William Wade regards this development as
revolutionary, because in his view it represents an exception to the rule that Parliament cannot bind
its successors.47 But I do not think that is right. It is elementary that Parliament possesses the power
to repeal the European Communities Act in whole or in part (I leave aside the political realities); and
the most that can be said, in my view, is that the House of Lords' acknowledgement of the force of
European law means that the rule of construction implanted by section 2(4) cannot be abrogated by
an implied repeal. Express words would be required. That, however, is hardly revolutionary: there are
a number of areas where a particular statutory construction is only likely to be accepted by the courts
if it is vouchsafed by express provision.48 Although Factortame and EOC undoubtedly demonstrate
what may be described as a devolution of legislative power to Europe, it is no true devolution of
sovereignty. In legal (though certainly not political) terms, the organs of European legislation may in
truth be described, for so long as the Act of 1972 remains on the statute book, as Parliament's
delegates; the law of Europe is not a higher-order law, because the limits which for the time being it
sets to the power of Parliament are at the grace of Parliament itself. For these reasons I do not

Page10

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

The separation of powers in the British constitution

Professor Robert Stevens, in his recent book The Independence of the Judiciary: The View from the
Lord Chancellor's Office, 49 says:
Nothing underlines the atheorectical nature of the British Constitution more than the casualness with
which it approaches the separation of powers.
Sedley J., in his review of the book50 (he is a great reviewer), ascribes to this what he calls a hint of
transatlantic self-satisfaction. But it represents an important truth about the nature of state power in
Britain. It is characteristic of the intellectual insouciance which marks our unwritten constitution that
though higher-order 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 first-year 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 party--the Executive--on 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. Ministers--especially the Prime Minister--must 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 the
Monarch but by others in Her name.

Page11

However the same convention means of course that the sovereign *P.L. 92 power in the state is
effectively in the hands of an elected body. Those old battles have long ago been won. They have,
however, been won at a certain cost, namely the suppression to a considerable degree of the power
of Parliament as a body independent of the Executive. What has in crude terms happened since the
seventeenth century is that there has been a trade-off between two ideals: one is the notion that
Parliament should be sovereign; the other is that the Executive government should be democratically
accountable. It has been done by clothing the Executive, previously autocratic and unaccountable,
with the legitimacy of Parliament.
The power which is generally enjoyed by the Executive over the Legislature is so great that it loosens
the ties between the people and their rulers. The benign force of democracy is diminished. While it
rules, the Executive enjoys great autocratic power which is only indirectly vouchsafed by the elective
process. But--and this is the emphasis of my position--even if Parliament enjoyed a true hegemony
over the Executive, still its rule should not in the last resort be absolute: still a higher-order law would
be needed for the entrenchment of constitutional rights and the protection of democracy itself.

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

Page12

assumed, but must always be asserted. There is no point at which there is nothing more to say; there
is no moment at which they are indefensible, no imaginable circumstances in which to consign them
to silence, like the oracle at Delphi when Julian the Apostate sent to it in the fourth century AD:
Tell ye the King, the carven hall is fallen in decay;
Apollo hath no chapel left, no prophesying bay,
No talking spring. The stream is dry, and had so much to say.
You will forgive, I hope, this Grecian flourish at the end.
P.L. 1995, Spr, 72-93

1.

Ex p. Brind [1991] 1 A.C. 696.

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. Rees-Mogg [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 61-67.

12.

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

13.

at 638G-639A.

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 410-411C.

18.

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

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 reader--if warning were needed--that the views expressed in this paragraph are at

Page13
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, 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 638G-639A.

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. Rees-Mogg [1994] Q.B. 552 at 561A-D.

41.

I use the term advisedly: some materials suggest at least the seeds of a less monolothic approach in Scotland--see for
example MacCormick v. Lord Advocate 1953 SC 396 per Lord President Cooper at pp. 412-413. 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 higher-order law
vis--vis the Parliament of the United Kingdom. Given Article 19 of the Act of Union (which I will not set out), 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 Kingdom--the 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.

Page14
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 140B-C.

47.

Administrative Law, (7th ed. 1994) pp. 30-31; 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 sea-change 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. 101-105.

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.
2015 Sweet & Maxwell and its Contributors