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The Good Constitution of Lord Justice Laws

There is a wonderful read that made my blood boil and my heart leap in hope, in equal measure, alternately. It is the David Williams Lecture delivered by Lord Justice Laws this very month: The Good Constitution.

Let me start with the background as I understand it. The British Constitution is in flux. It has always been so, because it is the accumulation of the judiciary’s interpretation of the legislature’s laws. There is no formal, written, immutable Statement of Constitution; so what we have evolves – the judiciary effectively makes it up as we go.

But this strange and somewhat delicate state of affairs is changing. We are slowly getting a written constitution imposed upon us – such as the Human Rights Act; laid upon us by a higher authority, the European Union.

This is tipping the traditional balance between the legislature and the judiciary. Traditionally, in the UK, we have an assumption of parliamentary supremacy. Ultimately, what parliament dictates (and personally, I use that word advisedly) is what happens.

But under a written constitution, the judiciary is bound to question and override the will of parliament if it contravenes the constitution. In short, the judiciary counterbalances, if not supersedes, parliament. It is against this background that Lord Justice Laws seeks to define The Good Constitution.

To put his argument very simply, the legislature is responsible for the good of the whole – society at large, the people en masse. The judiciary, however, in line with the constitution (whether formal or common law) is responsible for the good of the individual who may be unfairly penalised under the good of the majority.

The Good Constitution, says Lord Justice Laws, comes from finding the right balance between these two; where the legislature does not trespass too much on the role of the judiciary, nor the judiciary on the role of the legislature.

What makes my blood boil is that both the ‘good of the people’ and the ‘rights of the person’ are to be defined and administered by the great and the good: MPs and judges. The will of the people (you and me) is rarely mentioned and usually dismissed. At one point he refers to a letter that appeared in the Telegraph: “This is a democracy. If the majority want to remove Abu Qatada from the country, that is what this Government should do.” Lord Justice Laws responds: “This is not an appeal to democracy. It is an appeal to what the Greeks called ochlocracy, rule by the mob.”

To dismiss the will of the people as rule by mob is arrogant, illiberal and autocratic – and semantically wrong. The term ‘majority’ means the greater part of all people. The term ‘mob’ implies (it is debatable) a relatively small number of people out of control. The two cannot be equated.

There’s another example. “The weakness of the morality of government,” he says, “is the side-effect of democracy’s corrective medicine: populism, which is the price of the polling-booth.” Is he really suggesting that government cannot govern effectively because it is forced to consider the popular will through the voting system?

This is what disturbs me most about Lord Justice Laws. The whole paper reads as if the will of the people is irrelevant – poor little souls need to be told what they want. And between us, we, the courts and the government, are the people to do it.

But his paper also gives me some hope. We seem to be inexorably moving towards a more formal constitutional society; one in which constitutional rights can be upheld even against a parliamentary majority. The tyranny of government, which perhaps started with Maggie, came to a head with Blair/Brown and is continuing now with Cameron, could be held in check by a judiciary armed with a written constitution. Commenting on the current foundation of what could evolve into that full, formal, written constitution, the Human Rights Act, he says

And among the political rights, though they may be interfered with by government on public utilitarian grounds, there is to be found Article 10 – freedom of expression; and this is a right which is inherent in the autonomy of the individual, the very basis of the morality of law. Along with Article 9, freedom of thought and religion, it is integral to one of the law’s core principles – the presumption of liberty; and to the mandatory characteristics of the good constitution to which I referred at the outset: difference and disputation, in short pluralism. As such it needs the special protection of the judges. And I think it is under threat. There has in recent years developed an insidious tendency to regard the fact that certain speech is offensive as a reason for banning it. I do not think that offensive speech should ever be prohibited by law for no reason other than its offensiveness.

With a written constitution, provided that we do not allow the courts and parliament to carve it out between themselves at our exclusion, what we already consider to be our fundamental rights will be by necessity defended by the courts – who in this regard will be superior to the will of the politicians. It’s something we increasingly and quite urgently need.

But we won’t get it under the present system – which is something I should perhaps return to later. Meanwhile, read The Good Constitution with both fear and hope.

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