The Constitutional Balance

The Right Hon Sir John Laws(First Junior Counsel to the Treasury, Common Law, 1984-92 High Court Judge, 1992-99 Lord Justice of Appeal, 1999-2016 Goodhart Professor of Legal Science, Cambridge University, 2016-17)

In The Constitutional Balance Sir John Laws has left a vivid and timely commentary on one of the most pressing issues in the legal world today.The debate continues whether or not judges venture too far into issues of Government policy, and whether or not there are any limits on the power of the executive and the legislature to propose and enact legislation that unduly restricts fundamental freedoms in a democratic society subject to the rule of law.Sir John Laws examines the relationship between constitutional fundamentals and values. He finds basic ideals of reason, fairness and the presumption of liberty in the common law, and recognises that a democratically accountable executive and legislature must be able to make policy and enact and implement legislation to pursue social goals. The courts then interpret the laws. As Sir John puts it - "The meeting of Parliament and the common law, in the crucible of statutory interpretation, is close to the core of [the constitutional balance]".These fundamental values can compete with each other, giving rise to tensions within and between key state institutions, in particular the executive and the judiciary. A 'constitutional balance' between them must be found if the constitution is to function properly, each institution is to understand the proper extent and limits of its authority, and the rule of law is to be maintained. Sir John draws on his life-long experience as a barrister, judge and academic, and on case-law and learning, to explain in vibrant and engaging terms how such a 'constitutional balance' might be achieved.

Examines the relationship between constitutional fundamentals and values

IntroductionI. The Vice of IdeologyII. Three Aspects of the Human ConditionIII. Three Constitutional Fundamentals: The Constitutional BalanceIV. The Scheme of the BookV. Reflections1. The Rule of LawI. Two Meanings of the Rule of LawII. The Rule of Law - Where Next?III. Independent and Impartial AdjudicationIV. Beyond the Th in TheoryV. Unison v Lord ChancellorVI. Two Basics: Normative Statutory Interpretation and the Individual's AutonomyVII. Possible ObjectionsVIII. ExamplesIX. Conclusions2. DemocracyI. The Virtue of Democracy (1): Failed CandidatesII. The Virtue of Democracy (2): Its True VirtueIII. ReferendumsIV. Conclusion - Restraint3. Two MoralitiesI. The Nature of the Two MoralitiesA. The Natural Provinces of Courts and GovernmentB. The Two Philosophies are Apt to their Respective SpheresC. The Methods of Courts and Government are Suited to their Respective MoralitiesD. The Two Moralities and the Constitutional BalanceII. TrespassA. Criminal LawB. Trespass by GovernmentC. Trespass by CourtsIII. JusticeIV. Postscript4. The Common LawI. ConstitutionsII. Statute LawIII. The Common Law and Statutory InterpretationIV. The Constitutional BalanceV. The Methods of the Common LawA. PrecedentB. ExperimentC. HistoryD. DistillationE. Conclusions5. Reason, Fairness and the Presumption of LibertyI. Reason - Wednesbury and ProportionalityA. Wednesburyi. A Variable Standard of ReviewB. ProportionalityII. Fairness - Ridge v Baldwin; Legitimate ExpectationA. Ridge v BaldwinB. Legitimate ExpectationC. Overriding Public InterestIII. The Presumption of LibertyA. Two PropositionsB. The Presumption of Liberty and the Rule of LawC. The Principle of Minimal InterferenceIV. Postscript - Forerunners of Judicial Review6. Finding the Edge: Judicial DeferenceI. Introductory CasesII. Lord Hoffmann in the ProLife CaseIII. Why Should the Courts Defer to Democratic Power?7. Two Mistakes: Parliamentary Intent and the Ultra Vires DoctrineI. The Intention of ParliamentA. The Type-Token DistinctionB. Can Parliamentary Intention be Saved? (1)C. Can Parliamentary Intention be Saved? (2)i. Pepper v Hartii. Interpreting Contracts and StatutesD. Intent and PurposeE. An IronyF. The Constitutional PrinciplesII. The Ultra Vires DoctrineA. The Nature of the Ultra Vires DoctrineB. Objections to the Ultra Vires DoctrineC. Modified Ultra ViresD. Shortcomings of the Modified Theory8. The Sovereignty of ParliamentI. Constitutional Statutes and Implied RepealII. The Nature of Parliamentary SovereigntyIII. Assaults on the Constitutional BalanceIV. Auctoritas and Imperium9. Human Rights, Free Thought and ExpressionI. Human RightsA. Problems for the Constitutional Balance: The ECHR and the Strasbourg JurisprudenceB. The Human Rights ActC. ConsequencesD. The Ullah CaseE. Ullah in RetreatII. Free Thought and ExpressionA. Free Expression under AttackB. Offensive SpeechC. Religioni. The McFarlane Case