Professor of Law at University College London; practising barrister
at Blackstone Chambers.
Delivered as the JUSTICE Tom Sargant Memorial Annual Lecture at the
Law Society, 17 October 2006
In the recent film, The Queen, the newly-elected Prime Minister refers to the British
Constitution and his wife ripostes: ‘We don’t have a constitution’. The real Cherie
Booth QC would of course not say that in real life as she knows, as do we all, and as
we have been reminded by our Chair in important judgments, that it is not true that
our unwritten constitution is not worth the paper it is not written on. It contains
implied principles that are rooted in the fact that our system of government is
democratic. Its unwritten status may have disadvantages (such as incoherence and
inaccessibility – I’ll touch on some of those later), but at least it allows relationships
within our democracy to evolve and respond flexibily to new conditions, expectations
and moral claims.
One set of relationships in our democracy that has been subject to the most dramatic
alteration in recent years is between politics and the law; the appropriate balance
between those decisions which are the province of politicians and those which
belong to the law is one of the most fundamental question in all of all constitutional
theory and has great practical importance. It is that balance which I want to consider
this evening.
I shall start with a brief account of the principal controversies surrounding politics and
the law over the past few decades, then consider the current balance between
Parliament and the judiciary, including some of the misunderstandings surrounding
the Human Rights Act, then end with some of the administrative arrangements
which underpin the relationship between the different branches of government,
focussing in particular upon the government office situated at the precise junction of
politics and the law, namely, that of the Attorney General.

When I joined the University of London in the 1970s a lively debate was taking place
on the question whether recipients of discretionary welfare payments (known as
Supplementary Benefit) should have entitlements (they were called ‘welfare rights’).
At that time decisions were given on the basis of a secret code, the A Code, with few
opportunities for appeal or review of the case-worker’s decision. Professor Titmuss
of the LSE, himself one of the architects of the social security system, was strongly of
the opinion that the administration of welfare benefits should be carried out under the
benevolent and expert discretion of civil servants and he warned of a ‘pathology of
legalism’ that would occur if the advocates of ‘welfare rights’ had their way. Titmuss’
view was widely shared at that time by politicians, lawyers and even judges, all of
whom agreed that Parliament’s power to drive public policy, and the executive’s
power to implement it, should be largely unconstrained, and certainly not limited by
the law. During the development of the welfare state discretionary power was
increasingly conferred upon ministers and other public officials, but was relatively
untroubled by any judicial oversight or review. Aneurin Bevan, architect of the
National Health Service, was explicit that he wished to avoid what he called “judicial
sabotage of socialist legislation”.
And the judges did not dissent from this view. As Professor John Griffith said, judges
had been ‘leaning over backwards almost to the point of falling off the Bench to avoid
the appearance of hostility to the government’.
Chief Justice Parker said that law should be the mere ‘handmaiden’ of administration,
rather than its ‘governor’.
It is often said that Dicey set the course for constitutional arrangements in this
country and it is true that his primary constitutional principle, the sovereignty of
Parliament has obstinately held sway. However, his secondary principle, the rule of
law, which sought to place some restraint upon the unfettered use or exercise of
Parliament’s powers, was by no means as enthusiastically accepted. From the midtwentieth century powerful voices, such as those of Professors Jennings and even
Maynard Keynes, felt that Dicey’s rule of law was a device to stand in the way of
government intervention for the purpose of rectifying social injustice. Insofar as the
rule of law was accepted, it was transmuted into an obligation, on the part of the
courts and all officials, to secure the smooth implementation of Parliament’s designs.
That obligation was reinforced by a trusting faith in the career civil service to get
things as right as they could be, coupled, it must also be recognised, with a
longstanding suspicion of legal techniques of dispute-resolution which went back to
Jeremy Bentham who opposed not only a bill rights, but also ‘the licentiousness of interpretation’ of legislation by judges. Bentham’s disciple, Chadwick, sought to
exclude judicial review of immigration and customs officers on the ground that they
would lead to legal proceedings ‘upon such simple questions as whether a cask of
biscuits was good or bad’.