 Mae'r gweld gennym ni, dyma gwybod i'n gweld i'n gweithio i gweithio i'r 2019 sy'n Gwg Williams. Mae'n gweld i'n gweld i'n gweld i Lady Sally Williams i'r gweithio i'r gweithio i'r Gwg Williams, ac i'r newid yn bwysig i'n gweithio i'r gwneud hynny. Mae gennym ni'n gweld i'r gweithio i'r gweithio i'r gweithio i Lady Hale, vyny'n gweithio i'r gwneud yn llyfridd. Mae'r Gwg Williams i'n gweld i'n gweld i'n gweld i'n 2001 ar y llwyllfyn ysgrifennid ar y Fwrddol. Mae'n fydda i gael i'r byw ynchydigfaint ac ymddangosol gyda John Nolan a Michael Russ. Mae wedi gwrs wedi gweithio ar Walson Cymru o'r cymryddau Cymru, ac mae'r David William wedi fynd i'r ysgolwlad yn 1980-1992. Mae'n mynd i'r ysgolwlad John Nolan a Michael Russ i dda i gael i'r ysgolwlad yma. Over almost 20 years now, which has served as a testament to Sir David's extraordinary contributions both to his subject, to the faculty and the university, as a scholar and an intellectual and institutional leader. I also want to express my thanks on behalf of the faculty to all who have taken part in making this evening possible, to my colleague Daniel Bates, Claire Gordon, Felicity Eve Ray and Tanya Lanham, and most importantly to Alice Young, who has done so much to organise this evening's event. Let me turn then to Sir David. Sir David was born in Camarthen in Wales and as those who were fortunate enough to know him will attest, his passion for Wales stayed with him throughout his life. He was delighted in 2007 to be appointed the first Chancellor of Swansea University, having been the President of the former University of Wales Swansea since 2001. After national service in the Royal Air Force, Sir David achieved first in history and in law here at Emmanuel College in Cambridge. He went on to hold academic posts at Nottingham and at Oxford and then returned to Emmanuel where he served ultimately as senior tutor. During that period Sir David published many cutting edge pieces of work, perhaps most notably his books on not in the public interest and keeping the peace. He became a reader in the Faculty of Law in 1976 and President of Wilson College four years later. In 1989 he became the first head of a non-traditional college to be Vice-Chancellor of the University and subsequently he became the first full-time Vice-Chancellor serving until 1996. During his tenure he was knighted and appointed an honorary QC. On completing his term as Vice-Chancellor he reverted to a Professor of the Faculty of Law and retired officially in 1998. I say officially because thereafter Sir David remained a welcome and significant presence in the Faculty. When I joined the Faculty a couple of years after he retired I was fortunate to get to know him a little and to benefit from his advice and encouragement as I began my own academic career. In doing so I was just one of many many young scholars who benefited from David's generosity and wise counsel. Ever since the inaugural Sir David Williams lecture in 2001 delivered by Justice Sandra Day O'Connor we have been treated to a series of lectures by leading academics, practitioners and judges drawn from across the common law world including in Lord Bingham, the senior law lord, the Chief Justice of the US Supreme Court and the Chief Justice of New Zealand, South Africa and last year Canada. We are delighted that this evening's lecture will be given for the first time by the Presidents of the Supreme Court of the United Kingdom. Baroness Hale of Richmond studied law here in Cambridge graduating in 1966. She went on to be called to the bar and to teach for a number of years at Manchester University where she became a Professor of Law. In 1984 Lady Hale was appointed to the Law Commission, the Children Act being one of the many reforms that resulted from her time there. Her judicial career began in 1989, went to become a recorder and then a member of the High Court in 1994, the Court of Appeal in 1999 and the Appellate Committee of the House of Lords in 2004. In 2013 she was appointed Deputy President of the Supreme Court and four years later succeeded Lord Newburger as its President. Now it's commonplace for those who introduce Lady Hale to know that her career has been one of many thirsts as she has broken through glass ceiling after glass ceiling blazing a trail for others. But commonplace may it though be to point that out, it's nevertheless important, particularly this year as we marked the 100th anniversary of the Sex Disqualification Removal Act that paved the way for women to become lawyers for the first time in this country. Among the many notable thirsts that characterised Lady Hale's career are the fact that she was the first woman to be appointed to the Law Commission, the first person to be appointed to the High Court bench from a career not as a barrister but as an academic and public servant, the first woman to be appointed to the UK Supreme Court and the first woman to serve as President of that Court. She is also, as far as I'm aware, the first and only judge to be the subject of a children's book and the first and only judge to be described most recently in a BBC interview as the Beyonce of the Law. Perhaps just as notably, when this comparison was first drawn to Lady Hale's attention it was clear from her reaction that she knew exactly who Beyonce was, another judicial thirst. Lady Hale is incredibly generous with her time in relation to this and many other universities. We were very fortunate that she, along with many others, including her Supreme Court colleague Lady Arden, joined us in Cambridge only two or three weeks ago to launch our Cambridge Women in Law initiative. We're delighted that she has returned to the faculty this evening to present the 19 Sir David Williams lecture on principle and pragmatism in public law. Lady Hale. Thank you very much indeed for the very kind introduction and of course for the invitation because I regard it as a great privilege to be giving a lecture in memory of Sir David Williams. He was a great academic, a great teacher, a great vice chancellor and university administrator, but above all he was a great person. I remember about 45 years ago when he was an external examiner at the University of Manchester. And we entertained the external examiners and universities law faculty staff for a informal meal in our home in Derbyshire and it was quite a lively noisy occasion and I became aware that David had disappeared. And what had happened was I found him sitting at the bottom of the stairs with our two-year-old daughter who had crept down the stairs because she was so interested in what was going on. She's always been interested in what's going on amongst the grown-ups and David of course was far more interested in entertaining her than he could be in entertaining the assembled staff of the university. I can see that his daughter is nodding this strike zone so it's lovely to see his children and the grandson here today as well. But what on earth to talk about? Well I'm not going to talk about that. But earlier this year I gave the Freshfields lecture here in this faculty on the subject of principle and pragmatism in private law. This was of course an echo of the Hamlin lectures given by the late great Patrick Atier in 1987 on pragmatism and theory in English law. He discussed the tendency of English lawyers by which he meant practitioners and judges rather than academics. Not only to be more inclined towards the pragmatic and hostile to the theoretical but positively to glory in this approach. He went on to consider the strengths and weaknesses of the pragmatic tradition. He deplored a more general tendency to decide cases ad hoc to try and settle disputes by wholly pragmatic means without regard to the principles of law and the broader purposes which those principles must have. And I found it easy earlier this year to consider examples where judicial pragmatism had indeed overcome principle in the law of contract, of tort and family law. So it seemed obvious when I was asked months ago to suggest that this lecture should be entitled principle and pragmatism in public law. But it hasn't turned out such an easy lecture to those. It's possible to craft pragmatic solutions to private disputes between individuals or businesses and in private law this can be dressed up under such concepts as fair, just and reasonable. Now that's pragmatism written on stilts or public policy even more so. But is there an equivalent in public law? Well I've picked out three topics. One which seems to me to be almost entirely pragmatic rather than principled and that is the practice sometimes known as deference. One which seems to me to be dressed up as a principle subject but is arguably more pragmatic and that is the doctrine of legitimate expectation. And one which seems to me to be soundly based in principle even though its results may sometimes seem very far from pragmatic and that is the principle of legality. So deference. Judicial deference is the process whereby courts differ or attach overwhelming weight to the judgments of parliament or the executive in certain matters. Of course the judges don't like the term deference. In the pro-life alliance case Lord Hoffman didn't think that its quote over tones of servility or perhaps gracious concession end quote were appropriate to describe what was happening. In a society based on the rule of law and the separation of powers it was necessary to decide which branch of government has the decision making power and what those powers are. In that case the question is whether parliament was entitled to make part of political broadcasts subject to the requirements of taste and decency to which all other broadcasts were subject. That in his view was a perfectly proper decision for parliament as representative of the people to make so he didn't even examine it for its consistency with human rights. I think we may have moved on a little bit since then. Then again in the Lord Carlisle case Lord Sumption suggested that academic criticism of the concept quote arises from the word with its overtones of cringing abstention in the face of superior status. Well Lord Sumption has never been guilty of cringing abstention. There we go. So of course he doesn't like it either. He went on of course assigning weight to the decision makers judgment had nothing to do with deference in the ordinary sense of the term. It had two sources the constitutional principle of the separation of powers and the quote pragmatic view about the evidential value of certain judgments of the executive whose force will vary according to the subject matter end quote. That case was not about a decision of parliament but a decision taken by the Home Secretary that excluding a prominent Iranian dissident from the country was conducive to the public good. Deference is not the same as non justice ability. It doesn't apply automatically with reference to particular subject matters and it carries no presumption that the court will have inadequate expertise. Each case is judged in its own context. It's this variability that opens up the element of pragmatism as Professor Jowell has observed there is no magic legal or other formula to identify the discretionary area of judgment available to the reviewed body. Like Professor Jowell in his well-known 2003 article I don't think appeals to the separation of powers or to the greater democratic legitimacy of executive decision makers are a great deal of help in enabling us to decide in which cases to defer and in which cases not to do so. It is of course correct that parliament is accountable to the electorate and the executive is accountable to parliament but that is true of all legislative and executive decision makers. It cannot invariably be a reason for deferring to what parliament or the executive has decided. The whole purpose of giving legal recognition to individual human rights is to enable them to be asserted in the face of decisions made by democratically accountable actors. We have to ask ourselves very carefully which decisions we should respect and why. It's important I think to distinguish between the decisions of parliament as represented by acts of parliament and the decisions of the executive. Judicial views on deference to parliament differ widely. Lord Stain in his famous lecture, deference, a tangled story, endorses the statement of Madame Justice McLaughlin in the Supreme Court of Canada on the limits of the deference principle. She said, care must be taken not to extend the notion of deference too far. Parliament has its role to choose the appropriate response to social problems within the limiting framework of the constitution. But the courts also have a role to determine objectively and impartially whether parliament's choice falls within the limiting framework of the constitution. The courts are no more committed to abdicate their responsibility than is parliament. To carry judicial deference to the point of accepting parliament's view simply on the view that the problem is so serious and the solution so difficult will be to diminish the role of the courts in the constitutional process and to weaken the structure of rights upon which our constitution and nation is founded. We do not of course have a written constitution or a charter of fundamental rights as does Canada. But we do have a human rights act which expressly contemplates that the courts will consider the compatibility of provisions in acts of parliament with the convention rights. Why else do we have the duty of conforming interpretation in section 3 subsection 1? A duty which I employed only earlier this week and the power to make declarations of incompatibility in section 4. Furthermore, we have to have regard to the jurisprudence of the European Court of Human Rights and other Council of Europe organs. So what part should deference play in those processes? Should the courts take a different view of the respect owed to the judgement of parliament according to whether the matter is A, one on which Strasberg has made its view clear or B, one on which Strasberg has not yet expressed a definitive view or C, one which Strasberg would regard as falling within the margin of appreciation which it allows to member states? Well, this last scene is the most difficult case. And in the case of Nicklinson, the Supreme Court expressed a range of views. Most of you will know the facts, but here's a brief recap. Mr Nicklinson had suffered a catastrophic stroke which left him almost completely paralysed, unable to speak or carry out any physical functions on his own except limited movements of his eyes and head. But he wasn't dependent on life support. He communicated through the use of an idling computer. After some years he decided that enough was enough and he wished to end his life. He didn't want to inflict upon his family the pain and suffering involved in watching him starve himself to death. He wanted a more humane and dignified exit from the world. The case began as an argument that having a doctor administer a lethal injection will be justified under the common law defence of necessity or duress of circumstances. But it turned into an argument about assisted suicide when it emerged that an Australian doctor had invented a machine which could be activated to deliver a lethal drug by means of the idling computer. So in the Supreme Court the focus was on whether the absolute ban on assisting suicide contained in Section 2 of the Suicide Act 1961 was incompatible with Mr Nicklinson's article 8 rights. There was no doubt that his article 8 rights were engaged. This had been confirmed by the Strasberg Court in the cases of past, poor and gross. In Pretty and the United Kingdom however the court had also taken the view that a universal ban on assisting suicide, especially when coupled with a flexible prosecution policy was justified in order to protect vulnerable people. As a suprinational court they could fall back on the wide margin of appreciation according to member states in an area where there is as yet no European consensus in favour of committing assisted suicide quite the reverse. Now when the Strasberg Court accords a wide margin of appreciation to member states it is left to their own constitutional arrangements to decide what to do. So should the Supreme Court leave the question entirely to Parliament? In other words is Parliament the sole arbiter of what is and is not compatible with the Convention rights in the United Kingdom law? Or should the Supreme Court address the issues in proceedings brought under the Human Rights Act and reach conclusions on them? Of course leaving it to Parliament to decide whether the law should be changed. In Nicklinson the justices all I think took the view that there were occasions when the courts could decide upon the United Kingdom solution to an issue which Strasberg would leave to the member states. The House of Lords under no less than Lord Hoffman had done that with Northern Ireland's ban on joint adoptions by unmarried couples. But this was a ban contained, that was a ban contained in delegated not primary legislation. So four of the justices in Nicklinson thought that the whole issue should be left to Parliament and the court should not even express a view on what the answer was. Lord Sumtrin gave three reasons. First it involved a choice between two fundamental but mutually inconsistent moral values upon which there was no consensus in society. Second Parliament had made the choice. Third the parliamentary process was a better way of resolving issues involving controversial and complex issues of fact arising out of moral and social dilemmas. This is of course a view which Lord Sumtrin has elaborated very persuasively in his re-lectures. Lord Hughes took the simple view that this was very clearly a matter for Parliament. Lord Clark agreed that Parliament was the preferable forum and that imposing the personal opinions of professional judges would lack all constitutional legitimacy. Lord Reid accepted that the Human Rights Act has entailed some adjustment of the respective constitutional roles of the courts, the executive and the legislature but it didn't eliminate the difference between them. It didn't alter the fact that certain issues were by their very nature more suitable for determination by government or Parliament than by the courts. Now were the views of those four justices pragmatic or principled? I think I've summarised them fairly. Five of the justices thought that it would not be institutionally inappropriate for the court to address the issue. Rwilling it out would be an abdication of judicial responsibility. Lord Newberger observed that it was not possible precisely to identify the boundary between the area where it is legitimate for the courts to step in and the area where it is not. But he, along with Lord Mance and Lord Wilson, thought that the time was not yet ripe to do so. Those of you who have read Michael Cosmograph of Academica will know that in academic circles there is something called the doctrine of the unripe time which is used to justify any failure to do anything about anything in university politics. But I don't think that's what they would do. It was not for doctrinal but for largely pragmatic reasons and I have great sympathy with them because the case had started on quite a different footing and so the evidence was not addressed to the issue of assisted suicide as Lord Mance put it. This was an invitation to short cut potentially sensitive and difficult issues of fact and expertise by relying on secondary material and he was right about that. But my own view shared by Lord Kerr was that the question could be answered by reference to principle rather than evidence. It could confidently be concluded that the ban was overbraw. As the Canadian Supreme Court would later put it when deciding that their own ban was unconstitutional. Experience with comparable end of life decisions showed that a procedure could be devised for identifying those people who should exceptionally be allowed help to end their own lives. I too expressed the view that Parliament was much the preferable forum in which the issue should be decided indeed in a sense. It's the only forum in which it can be decided because only Parliament can change the law quite right too. But having reached the firm conclusion that the law was not compatible with the convention rights there was little to be gained and much to be lost by not making a declaration of incompatibility. It does seem to me that Section 4 of the Human Rights Act has introduced an important development in our constitutional arrangements by expecting courts to make the same sorts of judgement as are made by the courts in countries which do have a written constitution in which fundamental rights are entrenched and thereby creating a feedback mechanism from the courts to the sovereign legislature. We can accept, for the reasons given by Lord Sumtrin, that Parliament is the preferable place for such decisions to be made, but if Parliament fails to act in the face of clear incompatibility, it seems to me that it's our duty to say so. As Lord Newberger pointed out, difficult or unpopular decisions which need to be taken are on some occasions more easily grasped by judges than by the legislature. Perhaps indeed there is an element of pragmatism on the part of Parliament in its failure to act. Hence, deference is in my view principally relevant when it comes to making judgements about the justification or executive interferences with the convention rights. We are required to decide whether an interference is necessary in a democratic society or whether a fair balance has been struck between the rights of the individual and the interests of society or the community at large. In many contexts these are difficult things for judges to decide. The courts may well think that political actors are better qualified to decide them. Not so much because of their democratic legitimacy, but because of their practical competence. They know so much more about it than we can ever know. Two examples bring to mind. In the Belmarsh case, seven out of the eight judges in the majority, and I suspect also Lord Walker as the sole dissenter, were prepared to take the government's word for it that there was a public emergency threatening the life of the nation, which would justify derogating from the right to liberty from Article 5. I put it bluntly. Any sensible court, like any sensible person, recognises the limits of its expertise. Assessing the strength of a general threat to the life of the nation is, or should be, within the expertise of the government and its advisers. Protecting the life of the nation is one of the first tasks of a government in a world of nation states. Lord Hoffman famously dissented on this issue, but he did so not because he didn't accept that there was credible evidence of a threat of serious terrorist outrages, but on the basis that the government, and presumably also the other seven of us, had misunderstood what a threat to the life of the nation was. Terrorist groups did not threaten the life of the nation. Terrorism does not threaten our institutions of government or our existence as a civil community. I think had he taken a different view of the law, he would have certainly taken the same view as we did with the facts. More difficult was the Lord Carlile case, in which we were asked to take the government's word for it, but to allow a prominent Iranian dissident into England in order to meet with parliamentarians in the Palace of Westminster would endanger our fragile but imperative relations with Iran. We all agreed that the court was the final arbiter of whether the undoubted interference in the free speech rights of Miserazavi and the parliamentarians was a proportionate means of achieving a legitimate aim. But we also agreed that on some parts of the analysis, the government was better placed than we were to make the judgment. Parts of it were essentially a question for fact. What were the risks and how strong were they? As Lord Suption put it, how is the court to determine where the balance lies if, one, it has no means of independently assessing the seriousness of the risks or the gravity of the consequences were they materialized? And two, the Secretary of State is not shown to have committed any error of principle in her own assessment of them. We're not, in point of law, bound to accept the factual assessment of the foreign office about the impact on our relations with Iran of admitting Mrs Rajavi to the United Kingdom. But if we reject it, we must have a proper basis for doing so. In this case, there is none. There is no challenge to the primary facts. We have absolutely no evidential basis and no expertise with which to substitute our assessment of the risks to national security, public safety and the rights of others for that of the foreign office. This was, as he himself had recognized, no more than a pragmatic view about the evidential value of certain judgments of the executive. Far more difficult are those cases which turn on the justification for decisions of the executive in matters of socio-economic policy. There is much to be said for Dworkin's dichotomy between principle involving moral rights against the state and policy involving utilitarian calculations of the public good and the allocation of public resources. But there are situations where that principle and that idea of policy overlap. We have had a torrid time with cases about the benefit cap, the so-called bedroom tax and the revised benefit cap. On the one hand, these were all complaints of discrimination. Indirect discrimination against women. Direct discrimination against disabled people. Plymonos discrimination that is failing to treat people in different positions differently against lone parents. The courts have tended to claim some expertise in recognising unjustified discrimination. The House of Lords did so in the adoption case of Regine, for example. One of the principle purposes of protecting fundamental rights is to safeguard what may be vulnerable or unpopular groups or individuals from the will of the majority. So discrimination is our job. On the other hand, the courts have tended to adopt the same approach as Strasberg in relation to measures of socio-economic policy, in particular when dealing with welfare benefits. The test is whether the measure is manifestly without reasonable justification. Even this has led to some sharp divergencies of view. Denying an extra bedroom where there is clearly a clearly demonstrable medical need for one was manifestly without reasonable justification. But depriving families with children of subsistence level benefits was not. There's obviously deference here by the majority, both to institutional competence and to democratic legitimacy. But is there not also an even greater element of pragmatism in it in the standard adopted not only here but also in Strasberg? So that's deference. What about legitimate expectation? This is another area where the courts might be accused of being guided by pragmatic rather than principled considerations. The Doctor of Legitimate Expectation is firmly presented as a principle. Essentially, a public authority which has, by a promise or practice, conferred upon person a legitimate expectation of a procedural or substantive benefit may not frustrate that expectation without justification. However, the underlying rationale for the concept is expressed rather broadly. The prevention of abuse of power and the promotion of good administration. And there's a powerful exposition by Lord Justice Laws in the Batmurphy case. The power of public authorities to change policy is constrained by the legal duty to be fair. A change of policy which would otherwise be legally unacceptable may be held unfair by reason of prior action or inaction by the authority. If it has distinctly promised to consult those affected or potentially affected, then ordinarily it must consult the paradigm case of procedural expectation. If it has distinctly promised to preserve existing policy for a specific personal group who would be substantially affected by the change, then ordinarily it must keep its promise, substantive expectation. If without any promise which has established a policy distinctly and substantially affecting a specific personal group who in the circumstances was in reason entitled to rely on its continuance and did so, then ordinarily it must consult before affecting any change. The second, the case of procedural expectation. To do other words in any of these instances would be to act so unfairly as to perpetrate an abuse of power. Now that all looked pretty precise doesn't it? Not quite the doctrine of a stopl but something very like it. But the analysis has a repeated theme of fairness. It's plainly scoped for pragmatism to play a part in the determination of what fairness requires in any particular context. When a court is testing whether there's been an abuse of power, it isn't confined to Wettonsbury review but has itself to weigh the impact of the frustration of the expectation on the individual or group against the wider public interest in failing to uphold it. Spring Court has recently looked at this area in the Finnecan case. The question was whether the government should be held to a promise made in 2004 to hold a public inquiry into the death of the Belfast solicitor Patrick Finnecan who'd been brutally murdered by loyalist terrorists in front of his wife and children in 1989. The requirements of good administration were again identified as underpinning the doctrine. Hence the court rejected the notion that public authorities could resolve from their commitments simply because the person or group to which such promises were made were unable to demonstrate a tangible disadvantage. However, when considering whether the frustration of this legitimate expectation was justified, the test adambrated was one of fairness. The court accepted that it should give great weight to macro-political issues and that the holding of a public inquiry in the circumstances is properly a matter for the Prime Minister's political judgment. Lord Kerr said this, where political issues overtake a promise are undertaken given by government and where contemporary considerations impel a different course provided a bona fide decision is taken on genuine policy grounds not to adhere to the original undertaking, it will be difficult for a person who holds a legitimate expectation to enforce compliance with it. Professor Mark Elliott has been critical of the reliance on the concept of good administration as the foundation for the doctrine of legitimate expectation. He describes good administration as a concept whose apparent capacity to support what is in reality a Catholic body of doctrine is a tribute of nothing more than its peculiarity. I like language, I do. We're not allowed to use it. He complains of an overarching problem that besets this area of administrative law, namely an unfortunate judicial tendency to seek to avoid difficult doctrinal and normative questions by sheltering behind superficially attractive but ultimately rather empty notions such as good administration and fairness. Such language may be intuitively appealing, but it is incapable of doing the sort of analytical heavy lifting that is required if the law in this area is to be placed on an intellectually cogent footing that lends itself to coherent doctrinal development, just so. That's why I am tempted to agree that this area of the law is more redolent of pragmatism than principle. So what about legality? Can we find something which is principle, more principle than pragmatic? Could the doctrine of legality be such an area? It is a rule of statutory construction. General words in an act of parliament will not be read so as to commit an intrusion into fundamental rights. Parliament can, of course, legislate to remove or restrict fundamental rights, but it has to do so in clear and express words so that the parliamentarians can understand what they are doing and be prepared to take political responsibility for doing it. A recent example is a case bought by the trade union Unison, challenging the Ordering Council imposing fees for bringing employment tribunal claims. The Supreme Court held that the general words in the act empowering the Lord Chancellor to prescribe tribunal fees were not clear enough to authorise setting fees at such a high rate as to make it impossible, impracticable or irrational to bring a claim. As the court explained, the purposes of the fees order were legitimate, making resources available to the justice system, thus securing access to justice, and deterring frivolous or vexatious claims, thus increasing the efficiency of the justice system. But that didn't permit the Lord Chancellor to prescribe whatever fees he chose if there was a real risk that people would be effectively prevented from having access to justice. The Supreme Court had the benefit of evidence about the impact of the fees which had not been available in the lower courts. Further, as Lord Reed explained, even where primary legislation authorises the imposition of an intrusion on the right of access to justice, it is presumed to be subject to an implied limitation. As it was put by Lord Bingham in daily, the degree of intrusion must not be greater than is justified by the objectives the measure is intended to serve. The same principle was invoked in the Supreme Court's decision in Evans, the case in which a Guardian journalist had made a request under the Freedom of Information Act 2000 for disclosure of correspondence passing between the Prince of Wales and various government departments over a few months in 2004. The information tribunal, chaired by a High Court judge, heard evidence over several days, including the evidence of two professors of constitutional law, although neither of them from this university. Big puzzle, but one of them was from the University of Manchester, so that's all right. Anyway, they gave evidence about the conventions governing the relationship between the heir to the throne and the government. In a lengthy and carefully reasoned judgment, the tribunal concluded that the public interest in disclosure of many of the letters outweighed the various reasons given in the Act for refusing it. The tribunal had of course read the letters. The Act contains a power in Section 53 for ministers to override the decision of the tribunal and to veto disclosure if on reasonable grounds they consider it not to be in the public interest. Rather than exercising the right of appeal against the tribunal's decision, the Attorney General exercised this override power. Mr Evans then brought judicial review proceedings to challenge the decision of the Attorney General. He failed in the Divisional Court but succeeded in the Court of Appeal and by a majority of five to two in the Supreme Court. None of the judges hearing the judicial review proceedings had read the letters. I kept on being asked, you know, what do they say? Is it really all in spidery handwriting? No, no such thing. We had not seen the letters. That wasn't our point. We were simply ruling on the lawfulness of the Attorney General's decision. Lord Newburger, with whom Lord Perl and Lord Greed agree, said this. A statutory provision which entitles a member of the executive to overrule a decision of the judiciary merely because he doesn't agree with it would cut across two constitutional principles which are also fundamental components of the rule of law. First, a decision of a court is binding as between the parties and cannot be ignored or set aside by anyone. Secondly, decisions and actions of the executive are reviewable by the court but the suit of an interested citizen. Section 53, as interpreted by the Attorney General's argument in this case, flouts the first principle and stands the second principle on its head. In his recent reflectors, Lord Sumption has characterised this reasoning as saying that the government's power to override the judicial decisions of the information tribunal is such a bad idea that Parliament cannot have meant it. Well, I do think that the reasoning of those three is rather different from the reasoning of Lord Mans. He stated that any test must be context specific in the sense that it must depend upon the particular legislation and upon the basis on which the Attorney General was departing from the decision. It was clear that the Attorney General had to show that he had reasonable grounds for refusing disclosure, which was a higher test than mere rationality. In considering what is reasonable, one must consider the factual investigation by the tribunal and the extent to which the Attorney General can replicate that. Effectively, if a tribunal is better equipped to make a decision, then a minister or the attorney would need solidly reasoned grounds for issuing a certificate. I agree with Lord Mans. While our approach might be seen as a pragmatic compromise, I prefer to think of it as a principled interpretation of what section actually says in the light of the principle of legality, which mandates a minimal intrusion upon fundamental rights. Lord Sumption agrees with Lord Hughes, the dissenting justice, who said that the rule of law is not the same as the rule that the courts must always prevail no matter what the statute says, but I agree entirely with that. The point I am making is that in cases such as these, the courts have been prepared to construe acts of parliament in the light of the principle of legality without a hint of deference or pragmatism. Indeed, some might say quite the reverse. In the first substantive case to be heard by the Supreme Court, Armedd and Her Majesty's Treasury, the court held that the very general words in the United Nations Act 1946, allowing the making by orders in council of such provision as appeared necessary or expedient to carry out the decisions of the Security Council, did not permit the Treasury to make orders in council, permitting it to freeze the assets of people blacklisted by the Security Council without any sort of due process. This was a classic application of the principle of legality. Furthermore, the court refused the Treasury's application to suspend its order. Although it did have power to suspend the effect of any order, suspending an order declaring something to the ultravarys and caution it did not alter the fact that the something was void and of no effect. The court should not lend itself to something which might obfuscate the effect of its judgment, not a hint of pragmatism there. So have I a conclusion. I have convinced myself that, after all, there is a great deal of pragmatism in public law. Pragmatism, a pragmatic view about the evidential value of certain judgments of the executive, is a more convincing rationale for deference than democratic legitimacy. Essentially, pragmatic concepts of good administration and fairness are used to explain the workings out of the doctrine of legitimate expectation. And I expect that any competent academic public lawyer could even find pragmatic considerations creeping into our application of the principle of legality. The trouble is that real judges have to make judgments in real cases involving real people. And it is unrealistic to expect complete doctrinal coherence from them, or even analytical heavy lifting, though I suspect that many people do. Thank you.