 First of all, I'm David Feldman, and a very big welcome to the public law conference, the inaugural public law conference, which is sponsored by Heart Publishing and has been organised by a fantastic team which is sitting over here, John Bell, Mark Elliott, Jason Verujas and Philip Murray. They have put together a programme of stellar speakers with whom I have the pleasure of conducting an opening conversation with one, Sir John Laws, Lord Justice Laws. The way that we want to conduct this is that we will chat, but at some stage we hope you will, if you've not gone to sleep, find something to contribute and when you do please just come in. This is a conversation, it's not necessarily a two-way conversation, so the more involvement from you there is, the more entertaining it's likely to be, and there are, I gather, rows in the microphones which will row at the appropriate time. So we will try to keep an eye open for anyone who wants to contribute. Sir John Laws is a tremendous lawyer, a tremendous judge and a wonderful person. He actually started out his education at the Durham Cathedral Choir School, where he was followed, or his footsteps were followed in due course by one Tony Blair and Rowan Atkinson. You can draw from that what you will. He went on to the Durham Cathedral School and I did, when preparing for this, know your enemy, check the website of Durham Cathedral School and I found under former pupils a wonderful photograph on the front page of the website of John Laws. In a full bottom week, which just goes to show that he hasn't changed very much over the last 50-something years, but he is the face of former pupils of Durham Cathedral School and then he moved on from there to Exeter College Oxford where he studied literary humaniories and he became an honorary fellow of Exeter College in 2000. He had previously become an honorary fellow of Robinson College Cambridge in 1992, so we regard him as one of our own in every possible way. That feeling being accentuated by the excellent news that you ought to be the AL Good Heart visiting professor of legal science here in a couple of years time and we're looking forward to that hugely. I'm not quite sure what will happen because I read at the beginning of your hand lectures that law isn't a science, it's an art of a particular kind but that we can talk about that in a minute as well. John went on to the bar and became in due course the treasury devil, the junior treasury council common law from 1984 to 1992 and in that role and as in others he did a great deal to shape the development of public law in this country over an extended period. He went on to become a high court judge in 1992 and a law just of appeal in 1998, a position he still holds and has held with distinction. John has made and continues to make many distinguished contributions to the academic literature as well as to the substance of the law. Most recently in a Cambridge connection he gave the David Williams annual lecture for 2012, The Good Constitution which was published in the Cambridge Law Journal and most recently of all he has distilled a lifetime of thinking and learning in this. The Hamlin Lectures for this year, The Common Law Constitution which is a fabulous read and if you haven't bought it and read it you must. I have to say this because it's a well known feature of Michael Parkinson style sessions that the interviewee must have something to promote and this is what John has to promote. It's nip at 12.99 for the paperback. 12.99 for the paperback. It's a shame it wasn't published by heart but still. So that is it. But John has been and remains one of the great thinking man's and thinking woman's public lawyers so it's great to have you here. Thank you. We did discuss beforehand what we might talk about and John suggested discussing the challenge of human rights law and I'm sure we will get there. What I'd like to start with though is with what's obviously your very deep love of the common law and the common law method not just from an emotional point of view but a sense that it has huge normative value and I wonder whether you'd like to lead us in by saying something about that. Well I wish I could remember who it was that said in order to stay the same it's necessary to change. Somebody said it. I thought for a long time that the genius and the good fortune of the common law is its power of continuous self correction. We don't have a codified constitution. Of course we don't have a codified public law. We have individual statutes and if you look at the long history of the common law you will see that what we now call judicial review a potent weapon for the control of public power. It owes its origins to medieval writs which were issued to control lower courts and lower bodies and the genius of the common law rests in part in the fact that this process has been continuous uninterrupted. Well that's not quite right. It's interrupted from time to time but it is continuous and in each generation something is learned from what has gone before. So the judges of the common law like me can be extremely proud of their legal inheritance without making the mistake of being proud of themselves. They are proud of our communal achievement, an achievement that continues to flourish. It's been through bad times. There was a time in the 50s or David will remember better than me perhaps the early 60s when Lord Devlin said that the courts have lost the power to control the executive. In the earlier part of the 20th century the power of judicial review wasn't called that then was at a very low end. The growth of executive discretion had seemed to be unstoppable. Lord Hewitt who was a very bad Chief Justice wrote a book in the 20s called The New Despotism in which he was on to something and it was about the growth of executive discretion. Then from the 1960s people began to remember the Wettonsbury case. 1948 one Kings Bench 223 decided over a weekend by Lord Green in 1948 and there were the seminal cases in the 60s and his many padfields and others which began to get rid of old metaphysics like the distinction between error with in and without jurisdiction and on that there was built what we now call judicial review. So there's a modern history and an old history and I think we should all be extremely grateful for it. Let's just take an example, one of the examples you've given, whichever you like. In your lectures you outlined four features of common law method, the historical evolutionary approach, the ability to experiment through decision making and then to review it and think again under the process of what I think you call distillation and this link between the history, the creativeness, the experimental approach and distillation. Reaching a continuously moving stage of something like reflective equilibrium as things go along. Now if you could take one of those cases and tell us how those were working, maybe Anna's Minute case is a good example, decided in 1968. The body called the Foreign Compensation Commission, you'll know all this of course, the Foreign Compensation Commission had had power to make certain orders or directions and there was a no session error clause, a clause effectively or apparently forbidding review by the courts. There was an argument that a particular decision was not within the proper powers of the FCC and the House of Lords held of course that the no session error clause was ineffective. They got round it by what is a characteristic piece of common law genius. That is by treating as a matter of construction or interpretation what is really a matter of substance. They held that the decision in question wasn't a decision and therefore not subject to the prohibition that the statute had imposed. That decision, though it involves if you like a piece of intellectual leisure demand, has not really been, well it certainly has not been challenged since, and attempts to confine judicial review since then have either not been made or have faltered and failed. You may remember there was a time in the last government, I think when Lord Faulkner was Lord Chancellor that was going to be in provision forbidding social error, forbidding judicial review and certain immigration decisions and the outcry was so great that the provision was dropped. What is interesting though, and this shows the flexibility of what the common law can do, is that the law has allowed controls, restrictions, procedural confinements upon the power of judicial review. You see this in the planning acts, in the housing acts, in acts about transport, where there is a statutory appeal against a decision by the minister to grant withhold or to withhold planning permission and it has to be brought within a timetable and so on. Lord, the law respects that. The law does not apply in any specific piece of reasoning to provisions of that kind and it's clear that what's behind all this is the notion that there must be space for the law to say that some decision or another is out with the bounds of proper power. It will allow the politicians to control much of the procedure but not the substance, not the centre and so that I think is the inheritance of the Alice Minnick case. At the same time in the 1960s you had what's it called, the fairness case, Regent Baldwin about the chief police officer. That made the great breakthrough holding that procedural fairness was not confined to judicial decision makers and on that we've built a whole panoply of fairness as a standard on which judicial review requires ultimately our modern law of legitimate expectation and so forth. So Alice Minnick, Regent Baldwin are two cases which have given rise to the fruits that we have today in those particular ways. Would you regard those as distillations and experiments? I think a weakness of that analysis of mine which you would be too generous to point out but which is nevertheless a real weakness I think is that these four ideas run into each other so much that it's quite difficult to say that it's one or the other. It is a process of refinement which we can reasonably call distillation. If you look at the March of Time from 1968 when Alice Minnick was decided until now when we reached a position in which Parliament has effectively given up the attempt to abolish judicial review. So I'll buy distillation but acknowledge a weakness in the argument in the lectures. I wasn't dreaming of suggesting that there was a weakness in the argument. I was trying to work out something about what that means for the common law method in a public law setting. Can we ever know if this is right? Can we ever know if you like what the law is, what the law requires or are we in the position constantly of saying oh Alice Minnick that was a jolly interesting experimental initiative. It seems by and large to have worked except in certain areas the legislature has pulled things back in a way that the courts haven't seen fit to challenge in the planning areas for example. And this is an example of what you call the balanced constitution that what we then are faced with if we are public lawyers is having to think both backwards and forwards about what the next experiment can properly be. Because one might say that what Alice Minnick is taken to mean generally speaking today is very different from what it was taken to mean in 1968 because of the way it's been played with by practitioners, judges, even academics over the intervening period. This is right, but it is inevitable. You could say the same more broadly about the change in the use of what we now call judicial review from early days when it was simply controlling lower courts to its present use as a means of confining executive power. It does change and it changes sometimes in ways that are perhaps unexpected. And I think here there's another point to be made that's prompted by David's question. We have a duty in the courts I think both to develop the law so as to ensure its utility for today but also to respect the virtue of legal certainty and sometimes that is difficult. I think legal certainty is on the whole reasonably well served by the common law method because it is underpinned by a doctrine of stare decisis by rules of precedent which are themselves quite refined. If you recall, the Supreme Court does not bind itself and hasn't since the House of Lords practice direction of 1966. The Court of Appeal does bind itself. The Supreme Court of course binds the Court of Appeal and lower courts. The High Court does not bind itself but competing decisions of the High Court of the Divisional Court are rare because the practice is to follow an earlier such decision unless it's clearly wrong. So the doctrine of stare decisis of precedent is itself a refined doctrine and it's refined because, at least this is the result I couldn't claim it's the intention, it's refined because it produces a measured approach to legal certainty. It gives some but not too much legal certainty. Maybe it could be better, maybe it could be improved. The answer to David's question is yes, there are these changes and we have to think very carefully if we're going to push the law into a uncharted direction. It can be done and indeed there would be no common law at all if it was not done. But the beauty of the system is that that is possible but restrained. Y Llywodraeth Cymru? Perhaps not the debate for this evening. I worry very much about the possible effects of legal aid cuts and so forth but then everyone's worried about that. But that may be very important if we think of public law, common law as a system of experimentation because if you can't get before the courts the cases and the advocates who can make the case for the next step we lose an important opportunity. I quite agree. I'm not sure if I've got anything intelligent to say about that that wouldn't simply be overtly political. I'll tell you one anecdote about this which is it's not quite off point but it's nearly off point and I'm allowed to be nearly off point. I sit in the Criminal Division of the Court of Appeal as well as in the Civil Division and in the Divisional Court and too often for comfort in the last couple of years perhaps I've had cases in criminal appeals in which there's been a multi-handed case so several defendants and they've all been represented by different baristers at the public expense even though there's been no conflict between the defendants in question, maybe sentence appeals, maybe conviction appeals and they've all been merrily given legal aid when in fact one advocate for all six of them would do. Now this is a small narrow little example but I just wonder whether we shouldn't have done a bit more within the system ourselves to save public money. Certainly that would be an example but there are real problems about the way in which criminal justice is funded now and family justice too in which I'm no expert. Perhaps we can come back to public law then which is politically much safer public law, much less controversial. One of the things that interests me about your approach to things is that while you sit in the Court of Appeal you at the same time say that it's a good thing, I think this is what you're saying, correct me if I'm wrong, a good thing that the Court of Appeal constrains itself by way of star diseases but it will restrict its own freedom to experiment. Now I have an impression that you have a deep enlightenment or pre-enlightenment commitment to not succumbing to or bowing to anyone else's authority. I have a sense that one of the things that emerges from the Hamlin lectures on my other publications is the idea that one ought not to accept simply what someone else has said and use that as the basis for what you feel you have to do. Certainly when you discuss in the lectures you discuss extremism or one of the features of your objection to extremism as you define it is that extremists both regard themselves as bound by authority and think that they're justified in binding other people by the same authority, that they're justified in binding other people from thinking for themselves. Now that's an important aspect of what you said and what you wrote about the developmental aspect, the experimental aspect of the common law. Is there really a case for certainty as a principle if certainty requires judges to feel that they're bound by what's gone before as opposed to using what's gone before as material that can be used for an experiment? I'm not sure there's a single answer to that. Let me start by saying I think one of the great challenges for any person who does his best to think about ethics and how people should behave and how society should be ordered. So personal and political ethics or morals is this dilemma. On the one hand we should every one of us be thinking for ourselves. On the other hand no single one of us should assume we get it right all the time. Indeed maybe not much of the time. So there is a tension in any individual person's intelligent thought about morality between the necessity and the power of deciding for yourself and the necessity to realise that there may be other people wiser than you. And you have to drive away between these two things that allows you to be influenced by the wisdom of other people without being overwhelmed by other people's doctrines. Now that I think is reflected in for what it's worth I think about the law. In any case if it's in the least complicated or challenging and of course many cases aren't because the answer is obvious on the evidence or whatever. In any case which is complicated or challenging there tends to be that sort of dilemma. At least if the law is uncertain. And you are looking to see where the law should go that's making your own mind up and you're looking to see what others have told you. That's started the sizes if you like. And I think that that process reflects a civilised moral process. So it's a tension, a dilemma. And it's a dilemma which we should never seek to get rid of. The extremists do it by bowing their heads to a rule as we've seen recently. Sometimes a barbarous rule. But it may not even be a barbarous rule. They just bow their heads to it. I have no time for that. Equally I have no time for the man who thinks he's always right. Of course not. So the reality of ethics and the law is to find a way in between. That's an answer but it's not one. It's a bit rhetorical I apologise. No I think it's an answer and it suggests a further question. I thought it might. As these things tend to. It occurs to me that there are different levels of certainty or different levels at which certainty can operate. One can have a degree of confidence in the outcome of a particular case. A degree of confidence as to what norm will be applied in a particular case. And how it will be applied. And one can have a degree of certainty about the overarching. I can say overarching foundations but that's seriously mixing metaphors of the process by which the appropriate rule is articulated and selected. It may be what might it be that one can have a very high level of certainty about the outcome of individual cases while having far less certainty about the way in which we would articulate the law which applied to the case. And then no certainty at all indeed open disagreement about the overarching normative justification. That's a very interesting question was it. That is exactly. Well maybe not exactly. That is quite close to the position that arose in a case I had which seems to have interested quite a lot of academics called Thovern. Thovern was a case about Imperial Measures and Metric Martyrs case. And the reason I mentioned it is that the outcome in that case was utterly and completely obvious. The argument about implied repeal by the weights and whichever way around it was. The weights and measures act implied repealing the European Community Act was silly from start to finish. But I was unable to resist. It was weakness really. Going into a question which was raised by the excellent council for the prosecuting authority Eleanor Sharpson who is now the British Advocate General in Luxembourg about EU constitutional supremacy. So the case is known because it's because that's what it's about. But actually that's a deep and some would say difficult issue. But the outcome of the case couldn't be more obvious. And had I had any real discipline in my soul which I don't I would have just stuck with that. But a good example because it was just this crane. He was the other judge of the Divisional Court. He's dead now alas I think. I hope I'm not mistaking him for somebody else. It's a very nice chap. If you're here there is not it. He could well be dead. But he agreed with you. Yes he did. It's not that surprising. No it's not that surprising at all. But that does lead into another interesting issue which isn't strictly speaking or exclusively a public law issue about what's meant when judges say they agree with each other. Do they actually mean that they agree with every word that's fallen from the other judge or simply with the outcome that's been achieved. But it's a very interesting question because presumably he wouldn't want to be or to have been necessarily tarred with the brush of the speculation or was he happy with that. Speculative. I think well the whole business of consenting and dissenting judgements is quite important and not only at a technical level. It's some distance from public laws. It's much more general so I won't spend much time. I'll just say this about it. One of the potential vices of the common law system at least as it's practice here is the judges because we're all prima donnas like to express their own opinions even when it's not entirely necessary to do so. And you do find some judges saying I agree with law justice so and so but wish to add a few words of my own and then he or she gives completely different reasons for arriving at the same result. Now what is the poor barrister or solicitor to do advising a client in the next case? He doesn't know what the ratio of the decision is and I think we have been a bit undisciplined about that. But on the other hand isn't that providing valuable fuel for the evolutionary nature of the common law because what council in the next case does in the case after that is to take the various judgements that have been given and construct that interpretation of them separately together which will best suit what council wants to achieve. That's right but it's a bit but because it's right it's another example of the need in the common law to measure one value against another. In this case it's procedural practical rather than high principle. Certainly minority judgments can enrich the law and suggest ways forward for the future. But at the same time they can confuse the result in the individual case. I remember when I was early on at the bar I did something about a tort committed abroad and what the rules were about suing for foreign tort here. There was a case in the House of Lords with five different judgements all giving five different reasons. Boys and Chaplin. Boys and Chaplin. I'll give you any relevant anecdote in a minute. Now that was deeply unhelpful but at the same time you can have cases where even if judge number two is going to agree in the result with judge number one he adds something valuable. But we need to be disciplined about it and we're not always quite disciplined enough where we don't want to go. Something that would greatly impoverish the common law is what they do in the Court of Justice of the European Union at Luxembourg is not to allow minority opinions at all. I could not sit in such a court consistently with what I would regard as a judicial duty. It has another unfortunate effect which is that any paragraph or any bit of reasoning for which they can't get majority support simply disappears and you're left with a shell with important bits missing. I hope they'll change the rule. But we've got to Luxembourg and that's sort of half way to Strasbourg except it's easier to get to. And I wonder, coming back to the point about authority and thinking for oneself, I wonder whether your view of the way in which the courts in this country have approached the use of Strasbourg judgments, the other principle, whether your take on that is at all influenced by your instinctive feeling that judges should be thinking for themselves and not simply handing authority to someone else. I wouldn't deny that it's influenced by that. It's influenced by quite a lot of other things as well. One of my fears about the impact of human rights law is that there will be too many who may think that this is even now. What is it? 14, 13 years since the human rights I came into force, there'll be too many who think that this is an alien add-on to the common law. As you'll all know, the convention coming into force in 1950 was largely the hand of English lawyers from the Home Office and it's a wonderful text. And its influence and its effect and its virtues have been diminished and I think undermined by two things. One has been a misreading of the Human Rights Act 1998 so that we have regarded ourselves as close to obliged to follow Strasbourg decisions and then the critics will say, well, we're simply being slaves to a foreign court. That's one thing. The other thing, and this is all in the lecture, the other thing that has been difficult and I think damaging is that the judges, our own judges have sometimes been too blithe to make what are really political decisions about difficult human rights issues. It seems to me it would be a terrible thing if we lost the virtue of the Human Rights Convention by losing public confidence in it. Will you say the judges in Strasbourg? I mean sometimes here when I won't criticise my fellow judges but there have been some decisions which, well I might possibly be. There have been some decisions which I think have maybe not quite looked at the larger picture of areas for example like the deportation of foreign criminals where the politicians have taken a very clear line. This is the point of principle I think. The Human Rights Convention, marvellous text as it is, is there as everybody knows to preserve and protect core values, fundamental values. It came into existence five years after the Second World War and when the Stalin dictatorship was at its height, it was a response to the terrors of 20th century dictatorship. It's not about marginal decisions as to whether this or that person. Can I just pause there because marginal decisions, most of the deportation cases involve doing really nasty things to people by separating them from their families or even more nastily sending them to places where they're quite likely to be tortured. Now is that a marginal decision? Is the fact that the Home Secretary really wants to get rid of a certain person ideally by sending them somewhere where they're going to be tortured? A reason for the court to say no, no, we won't be involved, that's a political issue. If I give that impression I should not have done. Article 3 and Article 2 for that matter as the convention are couched in unqualified terms. If there's a danger that someone will suffer Article 3 ill treatment he mustn't be sent back. But then the language isn't necessarily conclusive because there are other provisions like the right to affair hearing or some of the sub-right to right to affair hearing under Article 6 where judges have been prepared to allow in a certain amount of wiggle room. I don't think there's been any slippage of that sort in relation to Article 3 ill treatment and that's vital clearly. As regards Article 6 the jurisprudence and it's the Strasbourg jurisprudence as well as the English jurisprudence says if you're going to find a breach of Article 6 by virtue of a state sending a person to another state as opposed to a breach in his own country then you have to find a flagrant violation. That's where the law stands. I was more concerned in what you might for a short time call the political rights between Articles 8 and 12 where in each of those there's a paragraph 2 that allows the state to derogate from the right on effectively public interest grounds and that's the area which the whole doctrine of proportionality has been developed. I think in those areas particularly in Article 8 areas there have been decisions in which where the issue has been one about which reasonable and civilized and humane people might very well disagree as to what the results should be and where that is the case I have some problem in seeing that it's for the court rather than the deciding government. To say which reasonable decision should prevail. I think that is that is a you can take the other view you can say now to Strasbourg jurisprudence shows that in some of these cases a marriage decision however robust will be the right one but I wonder about that as a matter of a proper application of convention law in the UK setting. This actually links up quite interestingly with your idea about the way that statute speaks and your view that statute is once the words are finalized. It's silent and you can't go back and interrogate it so it can work only through the assessment of it the application of it the interpretation of it by typically judges. Why do you think that the article 8.2 of the convention which is a piece of international arena the equivalent of a statute. Why is that something where the judges have to say this is for someone else where one wouldn't as I understand it. One wouldn't be prepared to do that for article 8.1. Well article 8.2 and article 10.2 and 9.2 and the others allow for a judgment to be made that the public interest requires the right to be diminished or not given in the particular case. I think everyone who's concerned with human rights law would probably agree that the first judgment as to where the public interest lies is for the responsible decision maker and the judges have a secondary role. This is all judge made stuff. I quite agree that convention doesn't say this. The judges have a secondary role in effectively policing that decision. There was an expression that's now getting more and more out of favor about judicial deference to the political decision maker. And the question is since we have municipalized the human rights convention and are applying article 8 ourselves the question is how big a discretion do we give to the judges give to the political decision maker or how small a discretion. It's a question about the balance of power. And this is the great and still unresolved challenge that we face in this jurisdiction over the human rights legislation. It is a question of how the balance of power should be resolved between the judiciary and effectively the executive although sometimes the legislature speaks very loudly on the subject as well. Now I think that whereas the judges have to be absolutely robust in defending fundamental principles article 3 if you like to a large extent also article 6 although there are qualifications to the right to fair trial. When it comes to the social or political rights where different views might reasonably be held we need to be probably rather more careful than we have been. There's a question of democratic power here. It's a democratic view of the democratically elected government is that this is the right policy for that sort of case. And it's not simply to unright it. I accept that but then the idea that there is a democratically elected executive is a bit of an oversimplification isn't it. I can't remember when there was last a government which commanded the support of a majority of the people who even those who voted in the election. We're really talking about a secondary form of election of the government where you have the government formed in reflection of the law numbers of people in the House of Commons. And so the democratic argument depends on the accountability the effective political accountability of the executive to the parliament or to someone doesn't it rather. I don't think it only depends on that. I think it also depends on where you think responsibility should lie for decisions of this kind. I agree with what you say about the nature of the democratic rule. But if you are faced with a question where this person let's say is committed a serious crime in the UK he is also fathered a child by a woman who is a British citizen here. And he's there for an article eight question about his deportation. How is the how is that issue to be resolved in terms of a constitutional responsibility for the decision with which we should all feel tranquil. Are the judges simply to say well we've heard the evidence we think it's a very hard case you should be allowed to stay. What weight should be given to the in the foreign criminal case the legislative not just the executive policy that such a person should be sent away. I think we need to be quite careful about that. I agree but where let me ask the question with another question. How do we prevent that sort of argument coming down to a point where the legal appropriateness of the decision makers decision becomes nonjustice. What's the benefit in having just disability of the decision if we're going to say that when it reaches the court the court must say this is. Because I think the answer to that is the court is not only concerned or should not only be concerned with the outcome. It will also be concerned with the process by which the decision has been reached. And as we know from all the ordinary non-human rights Wendsbury jurisprudence. Relevantly relevant considerations and so forth. Unless a proper discipline approach has been taken to the consideration of the factors that are relevant in the case. A decision may fall to be quashed and another decision taken. It's not merely that the court is saying well we're going to defer to the executive in relation to the outcome. Court is also saying we require a certain quality of decision making in relation to issues of this kind as with any public law issue. I mean I was part of your case in a rather different sphere which I was in a minority. The other two judges went the other way called Sinclair Collice about the sale of cigarettes and cigarette machines. And the proposed ban on this largely out of concerns for young people smoking. And it seemed to me that the decision making process that the government had gone through in arriving at the decision to introduce this ban by secondary legislation was not adequate of I would have crossed the decision. Not because I thought the decision was wrong or bad but for that reason now you can get the same kind of thing in more patent human rights cases as well. I'm conscious that no one has been terribly enthusiastic about joining the conversation.