The Brave New World of Sir John Laws
| Published date | 01 March 2000 |
| DOI | http://doi.org/10.1111/1468-2230.00257 |
| Author | J.A.G. Griffith |
| Date | 01 March 2000 |
THE
MODERN LAW REVIEW
Volume 63 No 2March 2000
The Brave New World of Sir John Laws
J.A.G. Griffith*
This article considers the political philosophy of Lord Justice Sir John Laws who,
in a series of articles, developed a theory of the UK constitution based on Kant’s
principle of the sovereign autonomy of the individual. The author points to the
dangers of entrusting the judiciary with too much power at the expense of the
democratic process.
The growth of judicial review over the last four decades and the imminent coming
into force of the substantive provisions of the Human Rights Act 1998 will
promote an acute conflict between the judiciary and the government, between
private rights and the public interest. The pressure to enlarge the scope of judicial
review finds support on the bench though some hesitation is being shown as
judicial intervention impinges on the policy and merits of decisions taken by
ministers and other public authorities. Cases in the 1990s such as Brind,1
Derbyshire,2Rees-Mogg,3Fire Brigades,4Pergau Dam,5Save our Railways,6
Smith,7and Al-Fayed,8show how far the reach of the courts has lengthened in the
few years since Lord Diplock laid down his trilogy of grounds under the heading of
illegality, irrationality, and procedural impropriety.9
The politicisation of the judiciary will inevitably bring under closer scrutiny the
attitude of individual judges to the proper scope of judicial review and the
generalities of the Human Rights Act. Lawyers, solicitors and barristers alike, whose
practice is in these fields of public law, of public authorities and their powers, will
need to know as much as they can about the general sympathies and antipathies of
individual judges. The idea that judges can be politically neutral in such cases has
never been true. Although to speak of bias or prejudice in this context is a misuse of
language, judges differ in their view of where the public interest lies.
When we seek to discover what is their view, we may be helped by what they
have said or written in the past, both in judgments and in extrajudicial writings or
speeches. And in recent years, judges have been more outspoken about their views
ßThe Modern Law Review Limited 2000 (MLR 63:2, March). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 159
* London School of Economics and Political Science.
1RvHome Secretary,ex p Brind [1991] AC 696.
2Derbyshire County Council vTimes Newspaper [1993] AC 534.
3RvForeign Secretary,ex p Rees-Mogg [1994] 1 All ER 457.
4RvHome Secretary,ex p Fire Brigades Union [1995] 2 AC 513.
5RvForeign Secretary,ex p World Development Movement [1995] 1 WLR 386.
6RvDirector of Passenger Rail Franchising,ex p Save our Railways ,The Times 18 December 1995.
7RvMinistry of Defence,ex p Smith [1996] 2 WLR 305.
8RvHome Secretary,ex p Al-Fayed [1997] 1 All ER 228.
9Council of Civil Service Unions vMinister for the Civil Service [1985] AC 374.
than hitherto. This is wholly desirable, and it means that we have now reached the
stage in the evolution of the judicial system when knowledge and understanding of
the political philosophy of individual judges are directly relevant.
What follows is an attempt to understand the philosophy of one distinguished
member of the Court of Appeal who has spoken and written about his approach to
the law.
From 1984 to 1992, Sir John Laws was first junior Treasury Counsel and as such
appeared regularly for the Government. The job usually carries the promise of
appointment to the bench and it has been noted that such appointees are often hard
on their former employers, one reason being (so it is said) that they have learnt how
governments seek to manipulate their power. Between spring 1993, shortly after he
was appointed as a judge in the High Court, and summer 1998, Sir John Laws
published seven major articles, in which, sequentially, he developed the exposition
of his political philosophy. The first article was on fundamental rights.
Fundamental rights
By the beginning of 1993, the European Convention on Human Rights had been
frequently referred to, both in arguments before the courts and in some judgments,
but there was no immediate likelihood that it would become incorporated into UK
domestic law and the Law Lords had refused to accept that it had any authoritative
place in their jurisprudence. By the end of the period, the Convention was clearly
bound for the statute book, the Human Rights Bill as a government measure having
had its second reading in the Lords.
At the launching of the campaign in the late 1980s to promote this enactment,
some of the senior judges had taken the view that the proposal was unnecessary
because the Convention did little more than set down, in a generalised form,
principles already provided for by the common law rules concerning the rights to a
fair trial, freedom of speech, the protection of privacy and the rest. This view was
superficially attractive, but seemed not to be borne out by the large number of
occasions on which judgments in the UK courts were held by the European Court
of Human Rights in Strasbourg to be contrary to the Convention.
In 1993 Sir John argued that the common law was able to accord a priority to
fundamental rights without incorporating the Convention.10 The implications of
this argument are several. The first is that there is a category of rights
distinguishable as ‘fundamental’; secondly, that judges are the proper persons to
decide which rights fall within this category; thirdly, that the definitions, and so the
limits, of the selected fundamental rights are also matters properly left to judges.
Whenever judges extend their jurisdiction over public authorities, they invade the
area of decision-making and of discretionary power hitherto occupied by
politicians. Whether or when this is to be welcomed in a particular case is a
political question. Over the years judges have taken different views of the proper
limits of their powers in relation not only to fundamental rights but more generally.
Today, the courts are seeking to push forward the boundaries of their jurisdiction.
Sir John concluded that the courts could properly use the European Convention
as a text to inform the common law as they did when they looked to the decisions
of foreign courts in other fields. And he relied on the judicial views expressed in
both the Court of Appeal and the House of Lords in Derbyshire County Council v
10 ‘Is the High Court the Guardian of Fundamental Constitutional Rights?’ [1993] Public Law 59.
The Modern Law Review [Vol. 63
160 ßThe Modern Law Review Limited 2000
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