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1 Jud. Rev. 41 (1996)
Significant Articles of 1995

handle is hein.journals/judire1 and id is 45 raw text is: 

Significant Articles of 1995

Nicholas   Bamforth
Lecturer in Law, University College London

Law  journal articles have come to play an influential role in the development of judicial
review, and the links between theorists and practitioners working in the area must sure-
ly be one of its more distinctive features. It is certainly difficult to imagine another area of
English law where judges engage with such willingness in academic debate. True to form,
1995 witnessed the publication of a number of significant articles of relevance to judicial
review and to public law more generally.

Three articles of particular interest, given their general constitutional ambit, have been
penned  by serving members   of the judiciary. In an essay entitled Law and Democracy'
[1995] PL 72 (based on his 1994 Public Law Project lecture), Sir John Laws suggests that
the English constitution must be viewed as underpinned by certain fundamental rights',
principal among  them  freedom  of expression, and that judicial review must develop
towards  offering explicit and systematic protection for such rights. This requires, Laws
argues, the acceptance of the notion of higher order laws which prescribe the legislative
framework  and are incapable of abrogation by the normal legislative process. The preser-
vation of  democracy  is conditional upon  the  notion that neither government   nor
Parliament should have  absolute power, the function of courts being to protect funda-
mental rights from legislative interference. Drawing on Sir William Wade's view that
Parliamentary Sovereignty lies in the keeping of the courts rather than Parliament,' Laws
argues that the higher order law which confers such Sovereignty must also limit it in the
name  of fundamental rights - which are categorised as those values which no democra-
tic politician could honestly contest. Laws argues that his definition of fundamental
rights is narrow enough to leave the legislature with wide law-making freedom. While it
is never explicitly stated that courts have or should have (the article veers somewhat
between  the descriptive and the prescriptive) the power to set aside primary legislation
other than for failure to comply with EC law, the clear implication is that they should be
able to do so where legislation conflicts with fundamental rights.

Rather different ideas of rights and democracy are pursued in Sir Stephen Sedley's essay
entitled Human Rights: a Twenty-First Century Agenda [1995] PL 386 (based on his 1995 Paul
Sieghart Memorial lecture). Sedley's concern is with the development of rights and with
their protection through the courts, and he argues that perceptions of democracy and
human   rights are likely to vary from age to age, single right answers being attainable
only locally and temporarily. The notion of one timeless set of fundamental rights is
therefore superfluous, and as such Sedley has difficulty with Sir John Laws' notion of
higher-order laws as the basis of human rights adjudication. Any notion of rights, Sedley
argues, must incorporate principles of substantive equality - in particular to prevent the

1.  The article is a development of views expressed by Sir John Laws in earlier essays - see his Chapter 4 of
    Supperstone & Goudie, Judicial Review (1992), and Is the High Court the Guardian of Fundamental
    Constitutional Rights? [1993] PL 59.
2.  The Basis of Legal Sovereignty (1955) Cambridge Law Journal 172.

Features           41

[1996] JR

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