LECTURE SIX FORMULA THREE (Cont.): JUDGES AND PARLIAMENT

You will recollect that Lord Simonds denounced Lord Denning's approach as "a naked usurpation of the legislative function". (in Newport Corp). As time passed, however judges and reformers have become increasingly sympathetic to Lord Denning's "liberal" or "purposive" approach to statutory interpretation. Thus Lord Wilberforce in Nimmo v Alexander [1968] AC 107, 130: "If I thought that Parliament's intention could not be carried out, or even could be less effectively implemented, unless one particular (even though unnatural) construction were placed on the words it shad used, I would endeavour to adopt that construction". Again, in Kammins v Zenith Investments [1971] AC 850, 851, Lord Diplock, no less, distinguished the literal and the purposive approaches and adopted the latter. And that was the view adopted, too, by the Renton Committee on the Preparation of Legislation which reported in 1975 (Cmnd 6053 esp para 19.2).



So if we press our reformulated version of Parliamentary Sovereignty, namely that courts are bound to apply act of parliament according to the [plain, obvious, literal] meaning judicial dicta abounds to the contrary; or rather, creative judges obscure their law-making behind the metaphor of the intention of Parliament. Thus creative judges can pay lip-service to the Doctrine of Parliamentary Sovereignty, whilst significantly impacting on and influencing the content of the law.



The old school, as it were, represented by, say, Lord Simonds, hold to the doctrine of Parliamentary omni-competence and insist that judges must only apply legislation according to its strict and natural meaning, however great the resultant absurdity or injustice. The new school, led perhaps by Lord Denning, though his views may be too extreme to be representative, implicitly deny this onmi-competence and insist that it is for the courts to fill in legislative gaps by constructive, purposive reasoning, perhaps drawing on materials and values outside the four walls of the statute.(1) The new school candidly acknowledges that Parliament cannot produce exhaustive, detailed, unambiguous legislation in anticipation of the myriad fact-clusters to which it may be applied.



Thus Lord Denning, again in Asher (1949): "Whenever a statute comes up for consideration it must be remembered that it is not within human powers [which must include those of Parliament?] to foresee the manifold set of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision". Likewise Hart, Concept (1961) p 125, "We should not cherish even as an ideal the conception of a rule so detailed that the question whether it applied or not to a particular case was always settled in advance and never involved at the point of actual application a fresh choice between open alternatives".



These views seem to me to challenge the classical doctrine because they allow of a range of decisions under a statute, none of which is required but all of which are permitted by the legislative words. The choice exercised by judges selecting a preferred meaning from a generous menu, not being pre-determined by Parliament, is not in reality an implementation of the intention of Parliament but an implementation of what judges think the best option in all the circumstances, including the range of choices left open by the statute.



Another, related problem created by the non-transparency of language, and especially legislative language (see Renton, Ch 6) is that of testing the various formulations of Parliamentary Sovereignty. In order to test a proposition about the legal system, so long as it is a descriptive statement of fact, one looks for confirming and refuting instances. To refute the proposition that courts always apply legislation according to its meaning one looks for counter instances. One can of course find some plausible candidates such as United Biscuits v Fall or Anisminic v Foreign Compensation Commission but a close reading of such cases reveals that judges simply do not openly admit that they are contravening the plain, obvious or natural meaning of the legislative language, rather judges say that they are implementing Parliament's "true" intention or are applying the Act according to its "real" meaning and even when reconstructing legislative language, judges are eager to play down any apparent difference between themselves and Parliament. Thus Lord Wilberforce in Anisminic insists that it would be a misdescription to suggest that there is any conflict between the courts and the legislature. It is at this point that we encounter a vicious circularity. It is the courts that say what an Act of Parliament means. There is no procedure for sending individual cases to Parliament so that the legislature could express an opinion and clearly such a device would rapidly clog up Parliamentary time (which is already too heavily committed adequately to scrutinise primary, let alone secondary, legislation). Legislation is therefore necessarily a hostage to judicial interpretation and construction. The interpretation of the courts has an authority as to the meaning of legislation - an authority which any casual reader of such legislation who reads an Act and pronounces upon its meaning wholly lacks. So Hobbes, astute as usual, states "It is not the letter but the intendment or meaning, that is to say the authentique interpretation of the law ..." and thus Bishop Hoadley' s famous remark [cited Hart p 137], "Nay, woever has an absolute authority to interpret any written or spoken law is he who is the lawgiver to all intents and purposes and not the person who first wrote or spoke them". If that is so, then it is a misdescription of the judicial role in the lawmaking and law aplying enterprise to state baldly that courts must apply (properly made) acts of Parliament according to their (plain, obvious and natural) meaning, no matter how manifest the absurdity or gross the injustice. Judges have a significant role in the law making and law applying enterprise even where statute has moved significantly into the field.



It is axiomatic in legal education that the meaning - perhaps I should say the whole meaning - of legislation is not apparent ion the face of a statute. Legal advisers and law teachers may be heard to say - and to say truthfully - that the meaning of an Act of Parliament or of a crucial section is unclear and will remain unclear unless and until authoritatively interpreted by the courts. Why is so much attention paid to cases in legal education? Well, in a common law jurisdiction one can suggest that much law is judge made and that the case reports are our only authentic, authoritative source. But even where, as is certainly the case in the late 20th century in Britain, legislation has indeed moved significantly into the field, cases remain relevant and they remain relevant even where the statute is a genuine attempt at codification such as the Theft Acts of 1968 and 1978 intended to be an exclusive source of law obviating recourse ro previous cases, because subsequent cases remain central to demonstrating how the words of Parliament operate in practice, and without such cases the legislation would remain an empty shell. Put cryptically, judicial decisions concretize the meaning of Acts of Parliament.



Donaldson J (as he then was) puts it rather less cryptically in Corocraft v Pan-American Airways [1968] 2 All ER 1059, 1071: "The duty of the courts is to ascertain and give effect to the will of Parliament as expressed in its enactments. In the performance of this duty the judges do not act as computers into which are fed the statute and the rules for the construction of statutes and from whom issue mathematically correct answers. The interpretation of statutes is a craft as much as a science, and the judges as craftsmen, select and apply the appropriate rules as tools of the trade. They are notlegislators but finishers and polishers of legislation which comes to thjem in a state requiring various degrees of further processing". While this does attempt, quite successfully, to reconcile the law-making role of the courts and the constitutional position of the legislature, it concedes that the courts do have a considerable role to play in the lawmaking enterprise.



Now where does all this leave the proposition that the courts are bound to apply Acts of Parliament according to their meaning ? It strikes at its very foundation by asserting that there never is and such is the nature of language, there never can be a wholly unambiguous, utterly transparent meaning for the court to apply. There is therefore no independent test for or statement of the meaning of an Act of Parliament and it is for the court to say what Parliament as an Act applies in the circumstances of the immediate case.



Thus in order to bye-pass a statute, courts need never say,"Parliament said X and meant X, but we will decide this case in contrary fashion". All they need say is: "We will decide this case thus and when Parliament said X, Parliament must be taken to have meant non-X, or X, or X and Y, or even X or Y [as the case may be]". One cannot, therefore find actual instances of courts avowing that they are not bound to apply or indeed are not applying Acts according to their meaning. Rather, courts will accept that proposition and argue about the meaning. Whatever the court decides is the meaning of the Act, however preposterous, unless and until changed on appeal, whereupon the meaning of the Act is almost magically altered; or unless and until Parliament intervenes in an attempt to re-establish its view of the meaning by enacting further legislation which is, of course., itself hostage to judicial interpretation and construction. Parliament certainly can and does intervene from time to time; e.g. Burmah Oil or Malloch (cases cited earlier) but there is no practical way in which parliament could scrutinise all judicial activity in its rich diversity and as Cardozo, I think, once aptly remarked, "The fecundity of our case law would make Malthus stand aghast".



I now want to flesh out this discussion further with two examples: (1) Obstruction: (2) Recklessness. First, as to Obstruction, consider an Act of Parliament that makes it criminally unlawful to obstruct a police officer in the execution of his or her duty. (At least) two issues of interpretation arise. (1) When is a police officer in the execution of his or her duty? [for book, add Kerr v DPP 1994 158 JP 1048 (DC); Oct 1995 CL 181 which confirms that the question of whether a police officer is in the execution of his or her duty is an objective question] (2) What does "obstruction" mean? Let us assume, contrary to fact, that the first issue is transparent and concentrate only on the second question.



"Obstruct" could be given a narrow meaning such as limits it to a physical barring of the officer's way, or holding on to the officer, or other wise laying hand on the officer, struggling with or threatening the officer. Again, "obstruct" could be given a wide meaning to include anything that makes the officer's job more difficult; e.g. such mischievous activities as warning others (who may or may not be breaking the law) that police are approaching, or heckling police as they seek to remove trouble makers from a crowd of football spectators, or political demonstrators; flashing one's headlights at approaching traffic to warn of a speed trap on the road; answering a police officer's questions falsely, or perhaps refusing to answer them at all.



Now which is the correct meaning of "obstruct"? Suppose a court opts for the wide interpretation and convicts an individual. Is it applying the statute according to its meaning? Presumably we would say that it was. Now suppose a different court opts for the narrower meaning and refuses to convict an individual on similar facts to those that convicted the other person. Do we remain as confident that the first court correctly applied the meaning of the statute? Well, which court has applied the statute according to its meaning? Have both? It would be a strange conclusion that the Act means that an individual who does X ought to be convicted and another individual who does exactly the same thing ought to be acquitted. That would entail saying that the Act meant X and not-X; and according to the rules of logical inference, any proposition whatever can be derived from two contradictory propositions (see Popper, Conjectures and Refutations, p 317). If so, then any decision whatsoever would be consistent with the Act, and the courts would not be bound because they could choose any meaning at all and be solely subject to themselves, which as Hobbes "sayeth is not subjection but freedom". [source ?]



Of course, in a hierarchical jurisdiction, seized of the doctrine of precedent, one might hope and expect that such a conflict in the interpretation of legislation would be worked out by way of an authoritative judgment of a higher court and perhaps preserved by the operation of stare decisis. Even so, at least for a time, we remain unsure as to what the Act means - and this is no mere intellectual puzzle for amusement - but the serious question whether an individual's conduct attracts criminal liability.

Let me refine the example further and tie it to actual law so that the point for Parliamentary Sovereignty emerges. Suppose the Act in question is one of many which applies likewise both to England and to Scotland. The Prevention of Crimes Act, 1871 was exactly such an Act. Later legislation which replaced that Act, namely the Police Act, 1964 and the Police (Scotland) Act, 1967 apply to the two legal systems separately, albeit both having been enacted by the same sovereign legislature. Suppose that the Scottish High Court of Justiciary (the final court of appeal in criminal matters in Scotland, there being no appeal to the House of Lords) has opted for the narrow interpretation. Indeed it did in Curlett v McKechnie (1958) SC (JC) 176 . Suppose the English courts opted for the wide interpretation. Indeed they did in Betts v Stevens [1910] 1 KB 1 and Hincliff v Sheldon [1955] 2 All ER 406. Although the English courts drew a line at refusing to answer a police officer's question in Rice v Connelly [1966] 2 QB 414. Are we really to say that the word "obstruct" used by the Sovereign Parliament has such a meaning that an individual who does X in Scotland is innocent but an individual who does exactly the same thing in England is guilty ? And are we to say that that is what Parliament intended, although, as is plain from the original and the derivative statutes, Parliament nowhere indicates that such differential treatment is intended.(2)



The second example concerns the meaning of "recklessness" in the offence of reckless driving. Despite dicta of Lord Goddard LCJ in Cording v Hulse [1955] 1 QB 63, 70 that it is undesirable that a statute common to both jurisdictions should be interpreted differently, the courts north ans south of the border emphatically parted company in interpreting the Road Traffic Act, 1972, s.2. Allan v Patterson (1980) SLT 77 decisively rejects a subjective criterion, whereas R v Murphy [1980] Crim L R 309 appears to adopt att least a quasi-subjectivist approach. Since these two decision the House of Lords in Caldwell and in Lawrence has restored a conception of recklessness in reckless driving which quadrates with the Scottish understanding but, arguable, at the price of distorting established conceptions of criminal liability.



Time prohibits a full consideration of this example and all that can be said about Obstruction can also be said about recklessness with this one point added, that it is the self same statute that both sets of courts are interpreting and applying. Did Parliament really intend that X = reckless driving in Scotland, but not in England and that a motorist, myself for example, should be converted from being a law-abiding citizen into a criminal simply by whizzing across the Tweed?



These two examples do seem to me to pose the problem of Parliamentary Sovereignty in an acute form. The formulation that we are now considering insists that the Courts are bound to apply an Act according to its (plain, ordinary, or natural) meaning. Here we have common terms "obstruct" and "reckless" used by a common Sovereign Parliament, in the first instance in two Acts, one addressed to England and the other to Scotland, and in the second instance one Act addressed to both England and Scotland, which are so interpreted that on exactly the same facts a person is innocent in one jurisdiction and guilty in the other. Are we really to say that Parliament means "X" north and "not-X" south of the border ?



Or are we to say that the English courts are and the Scottish courts are not applying these terms according to their meanings? Or vice versa? But if we say either, we are also saying that one or other set of courts is not applying the terms according to their meaning and if we say that, what has happened to the classical doctrine of Parliamentary Sovereignty in its third formulation? It would be manifestly false as a descriptive proposition. Of course courts on neither side of the border will brazenly avow that whereas Parliament meant X we, the courts, will decide not-X. That might precipitate corrective legislation or generate difficulties. Courts on both sides of the border will say that parliament means what they say it means; that they have correctly interpreted its terms. But if we accept both sets of courts, views then we must also admit that the meaning of a term in an Act of Parliament is so elastic that radically different, even flatly contradictory meanings can be regarded as flowing from it.



Thus when it is cheerfully announced that courts are bound to apply the meaning of an act of Parliament there is an element of circularity and subjectivity. There is circularity in that it is the courts themselves who say what an Act means; and subjectivity in that their own judgment is the crucial determinant of the meaning of an Act. It is therefore never necessary for a court brazenly to gainsay an Act of Parliament. Even if a court dislikes the apparent meaning of an Act and the policy underlying it, the court need not declare the Act invalid to avoid its apparent effect. The court will, rather narrow the scope of the Act, or re-interpret it. Of course, the court's proposal that when Parliament said "X" it meant "X"" or "X and Y", or "X or Y", or "not-X", it may not be believed, but however preposterous the court's proposal, such belief has no direct consequences within the legal system. What the court decides, however bizarre, is law unless and until set aside; that is to say, it is binding upon the parties to the litigation and, if it is a precedent, upon other parties as well.



So I regard this formulation of the doctrine as exposing it as a mirage, a trick of appearances and not a matter of real substance. But we should not allow the looseness of language to be exaggerated. In many cases statutory terms do have a clear, central, core meaning about which there can be very little non-contrived doubt. However, when one moves from the central case to the penumbra of doubt that the room for manouvre flowing inevitably from the nature of language tends to increase.



Judicial Attitudes. Judges, it may be suggested, fall into two broad groups: those who espouse the literal rule and thereby evince their allegiance and commitment to Parliament. And secondly, those who see their role as altogether more active, liberally construing legislation in order to adapt it to social needs, concepts of justice, and fundamental principles of the common law. Such judges see their allegiance as being to "the law" (conceived of widely) and not merely to Parliament. Such judges regard "law" as an organic system of principles far more extensive and coherent than the mere local and transient rules laid down by Parliament for the time being. "Law" on such a view is inherently a matter of reason and not merely the arbitrary will of a legislature. Such judges do not see themselves as usurping the function of Parliament, but as supplementing and even correcting Parliament by developing and modifying statutes in light of the historic wisdom of the common law. Their opponents and critics, including the literalist judges of course see all this as exhibiting insufficient respect for Parliament and as usurping the its function, and as fundamentally undemocratic.



As I have already shown, it is never necessary for the courts to enter into an avowed power struggle with Parliament. Far from denying Parliament's authority, even judges in my second group can readily and do pay lip-service to the doctrine of Parliamentary Sovereignty, saying that Parliament is supreme, while at the same time undermining or subverting the apparent or obvious meaning, intention or policy of an Act under the guise of interpretation or construction. Geoffrey Marshall, for example, observes, "Some of the interpretations ... which the courts in recent times have placed upon words such as 'final' or 'conclusive' as applied to the decisions of administrative tribunals could hardly have been predicted merely from a working knowledge of the English language" (86) Wow ! And Wade, analysing Anisminic v Foreign Compensation Comission [1969] 2 AC 147, of which more later, comments, "The intention of the legislator was clear, and in refusing to enforce it the court was applying a presumption which may override even their constitution obedience, that jurisdictional limits must be legally effective. This is tantamount to saying that judicial control is a constitutional fundamental which even Parliament cannot abolish" [Administrative Law p 573]. Again Wow and Wow and Wow ! If there is even one constitutional fundamental (let us call it the "rule of law") that Parliament cannot abolish, Parliament is not sovereign as classically perceived. And this is Professor Wade, and not some postmodern revisionist with a new theoretical axe to grind.



I plead guilty to Lord Wilberforce's charge in Anisminic of "misdesciption" because I assert that there are clear examples of deep-seated and long-standing opposition between the courts and the legislature. Look, fist at Griffith, The Politics of the Judiciary, Ch 3 for just one account of judicial subversion of Parliamentary policy and legislation. Secondly such opposition bubbles to the surface in reported cases. For example in Congreve v Home Office [1976] QB 629, 652-3, Lord Denning observes: "I would only add this. In the course of his submissions, Mr Parker said at one point - and I made a note of it at the time - that if the courts interfere in this case, it would not be long before the powers of the court would be called into question. We trust that this was not said seriously, but only as a piece of advocate's licence".



But judges are rarely so outspoken and an Anisminic or a Cooper occurs only once or so a century. In Anisminic the House of Lords contrived to review decisions of the Foreign Compensation Commission in the teeth of a legislative ouster clause which plainly stipulated that determinations of the commission "shall not be called in question in any court of law". Yet Lord Wilberforce - no doubt a great judge - insisted that the court was carrying out Parliament's intention and that it would be a "misdescription to state it in terms of a struggle between the courts and the executive".



Generally judges are not normally opposed to the content of Acts of Parliament, or, at least, not normally sufficiently opposed to have recourse to strained interpretations or extravagant constructions. One may contrast Professor Friedman's observation of "an attitude of jealousy rather than judicial collaboration in the judicial approach to statute" with the thesis so elegantly advanced by Professor Jaffe in his English ans American Judges as Lawmakers, p 20: "The organs of government are partners in the enterprise of lawmaking" Lord Devlin cited a similar passage with grave disapproval, vis "... courts and legislatures are in the lawmaking business together". Lord Devlin's disapproval seems to stem from his conception of the judiciary as the bulwark of freedom, a conception which itself bespeaks a readiness to oppose government and its legislation if needs be in order to uphold civil liberties. To advocate the kind of relationship which he takes Jaffe to be urging is, Lord Devlin believed, to put freedom at risk since our legislature is not independent of our executive, whatever the position may be in America. The rhetorical questions which seems to have been in Lord Devlin's mind are (1) if the judiciary are to be "partners" of the executive and the legislature, then who would, or indeed could, protect the citizen from the excesses of government? (2) Are the courts to form a partnership with government to the detriment of civil liberties?



This criticism of Jaffe seems to turn upon a rather unsympathetic reading and it bypasses the point that in the concretization of law, in the application of general statutes to particular cases, courts and legislatures are necessarily united in the lawmaking process, as Donaldson J so clearly stated in the Corocraft passage about judges being "finishers and polishers". Jaffe certainly believes that such a "partnership" is of the essence in a democracy, rather than a threat to democratic values, and I agree. He states, "It is not necessary, indeed in a democracy it is not appropriate, that the authority of any organ be absolute and unappealable. None of the organs of government speaks exclusively for the people or for eternity"(p 19). Furthermore the desirability of this dialectical interplay of legislature and courts pales into insignificance if it is necessary that in the concretization of law the courts complete a process only partially performed by the legislature. And in this concretization process the court have, as I have shown, the capacity to frustrate as well as to further the apparent policy of legislation.



Consequently, I conclude that this analysis of the third formulation of the doctrine reveals that the alleged sovereignty of Parliament is overstated. This does not mean that I regard it as unimportant or without consequences. As Professor Bogdanor puts it, "it may be a myth, but it is a potent myth". It seems to me that the widespread, uncritical acceptance of the doctrine, in its absolute form clouds analysis of the lawmaking enterprise, obscuring the subtle interplay of courts and legislature and thereby distorting understanding of law and legal system. That the judiciary espouse the doctrine cannot be taken at face value. Some judges, as I think I have shown, actually pay only lip-service to the doctrine, whilst doing something rather different, for example, resisting qualifying or subverting the "plain meaning". Such judges use the doctrine as a smoke screen whereby their lawmaking is hidden, that is, they espouse the doctrine to cover their own tracks. That is, perhaps acceptable (on the model of Plato's Noble Lie); there may be some virtue in doing good by stealth; but there is a price to pay, namely sustaining a doctrine which ultimately, as I believe, is not only misleading in its purported description of law and legal process but is also dangerous to civil liberties in a democratic society because the doctrine of Parliamentary Sovereignty is nowadays something of a misnomer for the sovereignty of the Commons, the Lords having been emasculated and the Royal Assent being, with minor exceptions, so much of a symbolic ritual that it can readily be passed over to a regent. That means that the law of the land is at the behest of a transient majority for the time being, itself, leaving aside the very occasional back-bench revolt, compliant to Government policy, not least because of the whip system and political patronage. Given the sometimes violent swings of policy occasioned by a change of Government, the law would swing more violently from one extreme to another, were all judges slavishly and uncritically to apply Acts of Parliament without question. Fortunately not all our judges are mere mouthpieces of the legislature, and the principles of the common law do constrain and moderate the wildest extremes of party policy even when passed into legislation. In his amazing book, The End of History and the Last Man, Professor Fukuyama (p116) makes the profoundly important point "The self-professed aim of modern education is to 'liberate' people from prejudices and traditional forms of authority. Educated people are said not to follow authority blindly, but rather they learn to think for themselves". It is not clear that the classical doctrine of Parliamentary Sovereignty is consistent with that liberal aspiration. So what sort of "rules" (of law) are apt for an educated people.



This leads naturally enough to a consideration of my fourth formulation, relating to omnipotence but one further caveat is necessary before we leave this formulation. The Popperian methodology which I have utilised, that is the pursuit of refuting instances is appropriate where we are testing statements of fact or descriptive propositions. I think that the doctrine of Parliamentary Sovereignty, however formulated, is descriptively false and I think I have given good and sufficient reasons for my view. But what if the doctrine relates to a statement of value or a normative proposition? Suppose it is said that Parliamentary Sovereignty involves the value judgment that judges in particular, officials generally, and citizens ought to obey Parliament , then the Popperian methodology of looking for a refuting instance simply will not suffice. After all, promises are sometimes broken, but the moral precept, "One ought to keep one's promises" is not thereby disproved or rendered invalid. And that version of the doctrine of Parliamentary Sovereignty, as a doctrine of political and moral virtue has its proponents and its parallel theory of law (see T.Campbell, The Legal Theory of Ethical Positivism)



A normative proposition acknowledges by its very nature that sometimes people do not behave in accordance with its bidding. Indeed if it was impossible to disobey, the normative proposition would be meaningless as a direction to human conduct. Compare, "You ought not to die" with "You ought not to lie". Of course, if the incidence of disobedience to the normative proposition "Judges ought to obey Parliament" is significant; if, for example, non-compliant behaviour outweighs compliant behaviour; if the principle is more honoured in the breach than in the observance, then we might conclude that the principle is not an effective determinant of judicial behaviour. But confirming instance of judicial compliance crown in thick and fast, sufficient to convince us that many of the judiciary most of the time regard obeying Parliament as something they ought to do, even where their own values or their perception of community values would urge different conduct.



An instructive example is the House of Lords decision in Duport Steels v Sirs which taken together with statements of the judges clearly revealed that, but for the relevant sections of TULRA, 1974, a different decision would have been reached. This case, like United Biscuits concerned "secondary picketing". Lord Denning's Court of Appeal had granted an injunction sought by a private steel producer against the steel worker union pickets when, in an attempt to bring the dispute between themselves and the British Steel Corporation to a conclusion, efforts were made to extend the dispute from the public to the private sector. The decision of the Court of Appeal might well have been thought contrary to TULRA, 1974, for reasons already rehearsed in out discussion of Fall v United Biscuits, though it might well have been in accordance with popular conceptions of justice and, arguably, in the public interest. The Court of Appeal decision also struck many as flatly inconsistent with a very recent House of Lords decision directly in point, namely Express Newspapers v McShane [1980]. Lord Denning, in particular, seemed to regard his function not as obedience to Parliament, nor to House of Lords precedent, but to broader principles of justice and the common law. In reversing the Court of Appeal decision, their Lordships clearly recognised that Lord Denning's allegiance lay elsewhere than towards Parliament or themselves, and the Times had summarised Lord Denning judgment as "Good Justice but Bad Law". For Lord Diplock, in particular, it was all a bit too much and he took Lord Denning very firmly to task, directing towards him a lecture in elementary constitutional law, full of allusions to the separation of powers, the judicial duty of obedience to Parliament and the impropriety of usurping the legislative function. I heartily recommend that speech to your attention (I've given it two stars on the handout). Moreover, all the judges expressed their dislike for the Act and it has long since been overtaken by the Employment Act, 1980 which is much in sympathy with Lord Denning's opinion than the legislation it amended. In adhering to the statute, despite their dislike of its content, the House of Lords can be understood to have reaffirmed commitment to the doctrine of Parliamentary Sovereignty. Of no series of cases is the following graffiti more appropriate. Someone, certainly no trade unionist, had written on a wall: "Lord Denning Rules, O.K." Someone in a different hand, possibly a knowing law student unmindful of the laws relating to criminal damage, had inscribed below the profound message: "The House of Lords Overrules OK".



And this series of cases and the related comment, reveals as clearly as can be that what is in issue, ultimately, are fundamental political convictions, principles and philosophies. On the one hand, there is the proposition that ultimate authority in a democracy is to be exercised by the elected representatives of the people; that the citizens at large, including the judges best realise the democratic will of the community by obeying the laws made by Parliament. As against which there is the proposition that allegiance to the will of Parliament should be conditional upon its being in accord with fundamental historic principles of the community as nurtured by the common law, the most articulate expression of the tacit understandings which hold society together and the most sophisticated corpus of wisdom and experience of social values and ideals. These two views reflect different stances in political values, different conceptions of democracy, different understandings of the judicial role, different visions of citizenship, different social ideals, and different legal theories. The insoluble and eternal conflict of such fundamental principles is the very stuff of which law is made, and constitutional law is no exception. Whatever one makes of the doctrine of Parliamentary Sovereignty, it should not permit such fundamental oppositions to be obscured, because the very life of a society depends on such oppositions. Whereas the doctrine of Parliamentary Sovereignty is a dominant feature of the British constitution, it should not be allowed so to dominate our thinking or our legal and political practice as to blind us to opposing strands of political philosophy and/or moral values which are also cherished by citizens and by judges and realised in our law.(3)





1. Here in the book I should add the observations in O'Connor about closed statutory codes cf statutes that are to be woven into the fabric and values of the common law.

2. Of course we can readily accept that the criminal jurisdictions of England and Scotland are different and that the law of the two countries differ. Scotland, for example, has no crime of blasphemous libel; England does, see R v Lemon [1978] 3 WLR 404, the Gay News case. But that is quire separate from the proposition now emerging that Scottish and English courts are free to attribute diametrically opposed meanings to the same or similar Acts of Parliament.

3. SEEMS TO ME THAT THE BOOK SHOULD END ON SUCH RINGING NOTES AND IF SO THAT LECTURES 7 AND 8 SHOULD BE INCORPORATED INTO THE EARLIER TEXT. I THINK THAT CAN BE DONE, LINKING BINDING SUCCESSORS, FOR EXAMPLE, WITH HART'S CONTINUING/SELF-EMBRACING DISCOURSE. MY HOLOGRAPH COPY, NOW ABANDONED MENTIONED "COMMENT ON DENNING'S DIMBLEBY LECTURE" SO I SHOULD CHECK THAT OUT.

"Magna Carta is such a Fellow as knows no Sovereign" (Coke)