Neither Parliamentary Sovereignty nor Judicial Supremacy: The Rule of Law as the Rule of Common Right and Reason: The 2025 Sir David Williams Lecture

Mae'r i'n gael arall yn yw'r gael arall yn ymwyr i'n gael arall yn ymwyr i'n gael arall yn yr amdol. Mae'r gael arall yn yr ymwyr i'n gael arall yn yr ymwyr i'n gael arall yn yr amdol. Mae'r gael arall yn yr amdol yn yr amdol yn yr amdol yn yr amdol yn yr amdol yn yr amdol ymwyr i'n gael arall yn yr amdol. Bu Micovell y Wyd bug second mayal. Probelau hwnnau, caelа feodfa fe o'n ac callau twyr! Fontanearwn le Toerfyd. yn y gallr lapsor plac tu enchEDdau a Shalln見てh o'n hyn yn haольш, a y fyddech wedi precipitationau y gallrefu. Beth hafilydd amyan hynny oodaethu'r cyfan أficaltod a lefydor mae Enterprise Restorbr Vacil o. Mae yw f代lanc fel pArgis o'r effefiolll ennyawyd medd floor mewn pArgis fond caphasw i. To pArgis at middill yr o'r hynchetr lephienhawn cad yr amg mewn&魔yn yna m Cliff tax deall ar yrShouldn yn fyndran mertain wrthau yn ymwyr i'r cyfan yn ymwyr i'r cyfan yn ymwyr i'r cyfan yn fyndran mwy'r cyfan. Mae'r cyfan yn fwy'r cyfan yn ymwyr i'r cyfan. Mae'r cyfan yn ymwyr i'r cyfan yn ymwyr i'r cyfan yn ymwyr i'r cyfan. Mae'r cyfan yn fwy'r cyfan yn ymwyr i'r cyfan yn ymwyr i'r cyfan. Mae'r cyfan yn ymwyr i'r cyfan yn ymwyr i'r cyfan yn ymwyr i'r cyfan yn ymwyr i'r cyfan. Mae'r cyfan yn ymwyr i'r cyfan yn ymwyr i'r cyfan. Mae'r cyfan yn ymwyr i'r cyfan yn ymwyr i'r cyfan yn ymwyr i'r cyfan yn ymwyr i'r cyfan yn ymwyr i'r cyfan. Mae'r cyfan yn ymwyr i'r cyfan. Mae'r cyfan. Mae'r cyfan. Mae'r cyfan. Mae'r cyfan. Dialog yngui civneidol erot eith Tyrgau'r wyfilgy dioes nhw i Fene吃 yn ' el鞌igredd. Mae gyfle'r gifted oedd ddyl yr am bliss ac NHS Roedd yn facto'r G そ Rdys Brantol A Sant Wynymrdoletoretud Roedd yn Cymru i'u yPPosodd 'ährot hi Dyd mi'l Dyd mi niol a加入adol. daroddiawg Defence y D New духов sanghap Makosirau Mwegoriaeth called or else we must submit to government by the judiciary which is inherently undemocratic. There appears to be no way out, somebody in the usual phrase must have the last word. But I believe we can find a more satisfactory path between these unappealing poles. Enabling us to acknowledge Parliament's legislative supremacy without abandoning the judiciary. role in defence of the rule of law. And we can't simply abandon the rule of law in any circumstances in my view. It traces out the line, I think, between law on the one side and arbitrary illegitimate part on the other. Of course, any attempt to find a more nuanced path between opposing positions, risks antagonising both sides of the debate. An old friend recently told me she'd adopted a rather similar strategy in discussion, when a colleague of hers, no doubt reaching for the worst insult he could think of, rounded on her, "The heavens' sake!" there, I paraphrase, "You sound just like Trevor Allen!" Well, I'm sorry, but that's a problem I can't very well avoid. The familiar antithesis was paraded by Lord Sumpchon, notably in Privacy International. He said, "In the absence of a written constitution, capable of serving as a higher source of law, the status of parliamentary legislation as the ultimate source of law is the foundation of democracy in the United Kingdom. The alternative will be to treat the courts as being entitled on their own initiative to create a higher source of law than statute, namely their own decisions." But talk of creating a higher source of law suggests to me a dubious volunteerism. It supposes that law is only the product of an act of will, where the Parliament's command or judicial dictat. Could the courts not instead simply recognise a higher source of law, embracing certain general principles of legality and good governance that have their basis, not in anyone's say so, but in political morality. The morality we invoke whenever we condemn oppressive regimes abroad, or appeal at home to ideas of justice or fairness or human dignity or human rights. I want to challenge the stand of model in which a sovereign parliament issues binding commands. The words of the statute express the legislator's instructions, it's supposed, and any failure to follow them amads to unjustified disobedience. If the scope for judicial discretion on this view, it's only at the margins, whether languages ambiguous or contradictory, or if taken too literally, might jeopardise the statutory purposes. Yes, it may well be the duty of the courts to uphold the rule of law, but only as far as the statute allows. The courts on this model are merely the servants of parliament, rather than guarantors of legal and constitutional principle. That language of commands, instructions and obedience assumes that law is simply an expression of will, ultimately the will of the legislator's. When we acknowledge constitutional rights on that view, we invoke them only as tentative but defeasable assumptions, vulnerable to curtailment, by any sufficiently strident contrary stipulation. Hence the principle of legality, as most famously articulated in Lord Hoffman's judgment in Sims. The only limits on parliamentary sovereignty he maintained were political rather than legal. The principle of legality meant merely that parliament must squarely confront what it's doing and accept the political cost. All supposing I want to add that there would be any political cost. He said, "Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process." But it's surely inevitable that the full implications will have passed unnoticed. They will become evident only as novel cases arise to be considered. Ambiguity is a product of infold unfolding events. It lies in our natural uncertainty about how far the context ought to make a difference. The interpreter, then, has in effect to complete the process of enactment, deciding in the light of all relevant considerations whether a statutory provision applies on the facts, and if so, what is legal effect may be. The intelligent and conscientious application of statutes I'm arguing is a matter of recent judgment, carefully attentive to the specific context. It's not truly about being orders or instructions. It doesn't involve capitulation to anyone's will. Statutory interpretation, it follows, is inherently sensitive to all the basic principles of the legal order, which steer us towards the correct answer in the particular case. Those general principles are always part of the relevant context. I'm only reminding you of what our common law forebears have always understood, even if that understanding seemed now much less secure. Chief Justice Cook famously said in Bonham's case in 1609 that an act of parliament made against common right and reason will be void at common law. He did not mean, I think, the such an act would simply be struck down by the courts as a nullity, but rather that it would be void in the sense that it had no application to the case in point. And perhaps no obvious application to any other case very likely to materialise. This is simply because no reasonable person would think it ought to apply in the circumstances currently in view. And according to Cook, that includes the legislator. He says, "Stun some statutes are made against law and right, which those who made them perceiving would not put them in execution." The question of obedience, then, is neither here nor there. To apply the statute involves trying to make sense of it as a contribution to justice in the specific context. The context of the particular case in point. However, for tall does the act alter the previous law, as a means of correcting what members of parliament evidently considered unjust or injurious to the common good. In trying to interpret the statute in that way, we take a degree of responsibility for the outcome, construing the act in a way that reflects well rather than badly on its authors. Even hops, for whom law was indeed the command of the sovereign, conceded as much, observing that the intention of the legislator is always supposed to be equity, for it will break continually for a judge to think otherwise of the sovereign. If hops continues, the word of the law do not fully authorise a reasonable sentence. The judge should supply it with the law of nature. Advice, which surely finds an echo in Justice Biles' famous dictum in Cooper and Wadsworth Board of Works in 1863. So strong is the presumption that parliament intends no departure from procedural fairness or natural justice as it is so well-named, that if necessary, quote, the justice of the common law will supply the emission of the legislature. A striking modern example of robust common law interpretivism is Evans, in which the Supreme Court declined to accept that a government minister could overrule the decision of a court, the upper tribunal of, because he disagreed with it. The ministerial veto, say called, was not to be taken too literally. I know I'm stirring up a hornet's nest here. The decision has been widely criticised, but nevertheless, I think the critics are mistaken. The issue was whether certain correspondence, the Black Spider-Mamos penned by Prince Charles then heir to the throne, should be disclosed under the Freedom of Information Act. Critics subject, that it was all a matter of balancing public interests. The public interest in disclosure against any public interest in confidentiality. which a minister can argue may do better than a judge. But they missed the critical point, I think, that that balance of interests supplied the legal standard for judgment. And it was a standard that required an assessment of constitutional principle. It involved freedom of speech, specifically freedom to publish information relevant to the role of a monarchy and the nature of our democracy. The tribunal was the only impartial arbiter here. And it's elaborately detailed reasoning showed that the minister's view was wholly untelable. Charles's advocacy correspondence as the tribunal described it, did not obtain protection under the so-called education convention, whereby the air learns in confidence about the nature of British governance. There were no reasonable grounds for the view that the act permitted non-disclosure as section 53 requires, even if the minister claimed the opposite. Note that the Supreme Court didn't strike out the provision in the act that granted the minister a qualified veto. It held that such a veto could only be properly used in very unusual, perhaps rather unlikely circumstances, not including the present case. The court was right, in my view, to resist a simplistic literal reading. The judges were defending the rule of law against an arbitrary ministerial rejection of a codient and compelling judicial decision. I'm rejecting the view that law is a species of empirical fact. This is the idea that statutes lay down certain rules, which impose whatever duties or demands their language specifies. That view leads us, I think, into serious problems, where faced with an apparently insolable moral dilemma. Should we support a measure on democratic grounds? It's the product of a democratic process. Or should we reject it, or at least try to evade it, on grants of justice? And there's no secure basis for seeking common ground. We disagree about political morality, taken in the abstract, and hence about the nature and scope of individual rights. We see to confront a choice between unvanished majority organism on one side and potential anarchy on the other. The way out of the impasse, I think, is to insist that more itself is always a reflection of political morality. The morality embedded in the principles and doctrines that express and shape our most fundamental commitments to liberal democracy and constitutional rights. Every legal judgment is an expression of those commitments adapted to the circumstances in which it applies. The law is not to be equated with official decree I'm insisting. But nor should we think it corresponds to an idea of justice that we can discern quite independently of our legal and constitutional practice. The law is not simply a reflection of universal principles of right, impervious to the specific context. Cook was right to think that we must look to the common law and thereby to our own traditions for knowledge of the law's content. But practice and tradition that not matters of empirical fact, there is source of moral knowledge and understanding. The law is best conceived, I think, as a more local or uniquely British instantiation of a grander ideal. The ideal of the rule of law. Cook's artificial reason is ultimately an interpretation of natural reason, but natural reason needs a more readily accessible avatar. What then is the rule of law? It shouldn't, I think, be conflated with what Longed Fuller famously called the inn a morality of law. This was mainly limited to the various formal and procedural constraints that served to make enacted rules fit for their purpose. Such rules are publicly ascertainable, only if they are published, perspective, clear, non-contradictory and so on. But though important, there's much more, I think, to the rule of law than that. The rule of law retains, when there are no unregulated pockets of arbitrary power, power wielded at the whim of an unaccountable powerholder. Every coercive act by a public official must be capable of justification by recourse to settle rules and familiar principles. The rule of law thereby entails equality before the law. Not merely in the pedantic sense that the rules should apply to everyone whatever their content may be, but in the more important sense, they treat everyone with equal dignity, equally entitled to the benefit of the general principles of justice, that the law, construed as a unified body of interrelated standards, assumes or proclaims. Common law and adjudication, I think, consists in the working out case by case of the practical implications of that commitment to the rule of law. It generates reaffirms our public conception of justice, the principle of justice that ultimately define our constitutional arrangement as a genuine legal order, a regime worthy of any one's allegiance. Principles and precedent are interdependent. We invoke the principles to make sense of the precedence, and the precedence in turn shows us what the principle's mean in practice, giving abstract ideals a more concrete expression. We can draw an analogy, I think, with John Rawls' idea of reflective equilibrium, the idea that in ethical reasoning we try to bring our moral intuitions into harmony with general principles in a mutually supportive way. We do match the same in common law reasoning, but with examples taken from familiar precedent rather than shared moral intuitions. The principle of legality, then, can be straightforwardly understood as demanding adherence to the rule of law, allowing the exercise of power only insofar as it's justified. Constitutional rights must be given the weight or force appropriate to the specific context. If we think as the House of Lords accepted in sims, that investigative journalism can sometimes expose a mischarit of justice, we should disallow overly restrictive prison rules that impede of journalist efforts to explore the safety of a doubtful conviction. We should interpret the Minister's powers under the Prison Act to make rules for the regulation of prisons accordingly, those powers being subject to compatibility with basic constitutional values. It's not a matter of divining certain legislators' intentions, even hypothetical intentions, or following implicit instructions. It's simply a matter of reasoned judgment, responsive to all the available evidence. Insofar as there are constraints on the exercise of basic rights in certain cases, we can embrace a principle of proportionality. Statutory limitations are justified only insofar as there's strictly necessary in all the circumstances. There's no arbitrary balancing of rights against interests here, or weighing the incommensurable interests. We merely acknowledge that a legitimate sentence imposes certain inevitable constraints on the exercise of our prisoners' rights, which are nevertheless preserved as far as practicable. Now combining the principles of legality and proportionality in that way, admittedly prompts the objection in certain quarters of inconsistency. While Lord Hoffman might require Parliament expressly to qualify basic rights if it sees fit, we can hardly expect it to foresee all the different circumstances in which statutory powers may need to be curtailed to accommodate common rights. So how do we know whether Parliament would have approved of the various constraints imposed on the scope of a power in particular instances? But our response to the objection is plain, we reject its premise. It's not a matter of what the legislator's intended or foresaw, a would have intended or foreseen, it's simply a matter of what in context just as requires. We cannot then concede that genuine rights can be made. can be simply overridden by clear or expressed language, let alone by necessary implication. That will be a denial of rights, a flagrant breach of the principle of justice at the rule of law of firms. Of course, we can properly argue over what in each context a right actually requires or prohibits, finding our arguments as much on familiar practice or settled tradition as first principles. But that's a matter of reason, sophisticated common law reason. Not legislative feared. In any case, the language is never sufficiently clear. The greater the threat to fundamental rights, the weaker the linguistic resources for plausible encroachment. Such resources eventually peter out entirely. A statute that purported to penalise a political opponent, for example, would have to name its victim. Its very clarity and specificity would undermine its status as a genuine law. A bill of attender is an explicit repudiation of the rule of law. Do you recall the pristine clarity of the Aster clause in Anders Minnick? The Foreign Compensation Act provided that no determination of the tribunal can be called into question in any court of law. The House of Lords held that the clause did not apply, in the case of jurisdictionary error, the tribunal could not be allowed to exceed the limits of its statutory authority. It's part of the standard view, I think, to treat that decision as an example of power play between the courts and parliament. The courts were allegedly disobeying their clear instructions, even if we think that perhaps they were right to do so in all the circumstances. The sort of double think operates here. Absolute parliamentary sovereignty must be conceded, but on occasion we must pretend that the law is not what that principle suggests. That wholly misconceives the position, in my view. It's surely a matter of balanced interpretation, responsive to all relevant considerations. On one side are the reasons in favour of limiting the scope of judicial review, according to the tribunal a real jurisdiction, allowing it to make its own decisions, and on the other side are the reasons for imposing certain boundaries defining the limits of that jurisdiction. Only an analysis of the nature of the error alleged can tell us how to draw the line on the facts of the case. But questions of obedience or disobedience are neither here nor there. To cast the matter in those terms is really to abandon public law in favour of political knockabout. Great fun for those with an extra grind, but a sad failure of serious academic critique. For another example, we can go back to Lord Sumpchens dissenting judgment in the Supreme Court in Privacy International. In the light of the sweeping astroplores in the Investigative Powers Act, he held that the court should not intervene to review the tribunal's reading of certain provisions of the act. And he fully accepted that the astroclores would not apply if the tribunal exceeded his proper sphere of operation, its subject matter competence, or if it acted in bad faith, or in fringe the principles of natural justice. Its judgment that plainly respects the rule of law, whether or not you agree with its conclusions. No one disputes that a statutory provision should be read in the context of the act in which it appears. How could they sensibly do so? So why would anyone want to read an astroclore as if it were free standing? Unaffected by all the various limits and conditions expressly imposed on the tribunal's powers. I think we might agree then with Lord Kahnworth when he says, "It's ultimately for the courts not the legislature to determine the limits set by the rule of law to the power to exclude judicial review." But I'm not sure we need to say, as he also said, the binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction. We should simply say instead that an astroclore should be given effect in the manner that the rule of law commends, we don't need to pick a fight when we don't have to. Legal interpretation, I'm arguing it's not a fringe activity operating around the edges of a set of clear self-applying rules. It's of work in every application of a rule to a set of particular facts. Every novel case is a site for argument about which rules are pertinent and what in context they mean or imply. The language cannot offer a safe refuge from judgment and responsibility. To trump it the statutory words alone as automatically providing the definitive answer, rather as the dissent incident did in Evans, is to abdicate that critical responsibility. When Sir John Laws said in court, the Parliament cannot dispense with an authoritative judicial source of interpretation of statute, an implicit condition of the exercise of legislative authority. He was not, or at least not merely, making a clever move in the institutional power game. He was identifying a truth about constitutional government. In the absence of judicial interpretation, where necessary, the statute lacks a definitive meaning. And the true meaning is not what certain MPs or ministers or officials might have hoped to demand. It's what the statute means in the context of the law taken as a whole as it applies to the facts in view. The whole law, including the common law and the constitutional rights that are now an intrinsic part of it. That's the knob of the rule of law. It means the governance of law in the sense that every coercive act must be justified, not merely by reference to a specific statute or precedent, but ultimately by reference to an interpretation of statute or precedent that we can defend as part of a unified body of legal principle treating all alike in the relevant respects. From an instrumental view of law, as chiefly a tool for government purposes, the rule of law may appear to be something else, a limited defense against abuse of the powers conferred by law in Joseph Razz's conception. But the law has intrinsic value, in my view, as a system of justice, evolving by incremental steps in response to new social and technological developments and fresh moral and intellectual challenge. We may sometimes wish the law were different. It doesn't match anyone's blueprint for the perfect society. But it doesn't follow that the current law is unjust because justice is an ideal we must pursue in collaboration. That's why we invite the precedents for guidance. A just decision, in any particular case, is one that conforms to the law, complies with the rule of law, in the sense that it forms one part of a complex moralicoherent whole. The law may not be what it ought to be from a purely external viewpoint. The view of the disillusioned critic perhaps, who would like to sweep everything away and start again, preferably no doubt with himself or herself as dictator. But the law is what it ought to be if we've interpreted the statutes and precedents correctly, consistently with the basic rights and principles that give the whole structure its moral unity. Historians are divided by whether in Bonham's case, cook in footage the courts for pleudiate unjust statutes. But the controversy is in a sense beside the point. From a common law perspective, as I can see, an unjust statute unjust in the critical sense that violates basic principles is simply a contradiction in terms. An unjust statute so-called can only be a misconstruction, a misreading, attributing dishonorable intentions to its author. The question is always, how can we read the text so that it is treated as an intelligible contribution to justice or the public good? How best can we incorporate it into the corpus euro's? The more the text resists such treatment despite our best efforts, the smaller its effect on the content of the law. The veto provisioned an issue in Evans was largely ineffective for precisely that reason. It made no intelligible contribution to the law as a unified structure of rules and principles. That was Cux concern, I think, in Bollum's case. A statute should make good sense as part of the law taken as a whole, underpinned by the general principles that insurance conformity to justice. An act of parliament is against common right and reason or repugnant or impossible to be performed to give Cux full elaboration when it contradicts principles or doctrines on which the law's overall coherence critically depends. Look was especially concerned with breaches of the subtle precepts of fair procedure, which almost inevitably lead to a serious rupture between law and justice. He thought that what purported to be judicial proceedings but lacked their essential character could not generate legally valid penalties. That must be especially true of judicial proceedings in which one side labors in the dark about the allegations or the evidence. An unfair trial in which a defendant or detainee is unable effectively to answer his accusers is only a parody. It would not really be an adjudication and those in charge would not truly constitute a court in the pertinent sense. In AF #3 in 2010, the House of Lords denied that there could be a fair hearing for the subject of a control order under the Prevention of Terrorism Act. If the case against him were mainly based on closed materials withheld on grounds of national security. The schedule for the act said that rules of court must provide for the disclosure of material to be disallowed when such disclosure would be contrary to the public interest, very broadly defined. But the House of Lords read in an import proviso. Those rules should be applied quotes except where to do so, would be incompatible with the right of the controlled person to a fair trial. In other words, the right to a fair trial must not in any circumstances be denied. Admittedly, the court was prompted to do the right thing by the European Court of Human Rights. Section 3 of the Human Rights Act was at hand to help read down the statute as far as necessary. But if due process is fundamental, central to the rule of law, then the common law must surely give the same answer. As indeed, Lord Hope acknowledged, observing that a denunciation on grounds that are not disclosed is the stuff of nightmares. The rule of law in a democratic society, he said, does not tolerate such behaviour. The fundamental principle is that everyone is entitled to the disclosure of sufficient material to enable him to answer effectively the case that is made against him. As Lord Justice said, "Incist had insisted in the Court of Appeal, you can never know what difference disclosure might have made, and for a judge to hold a hearing in which the party affected has had no opportunity to respond, is he says constitutionally subversive because it negates the judicial function critical to the control order regime." Law, in other words, collapses into arbitrariness and tyranny. It's interesting, I think, that Lord Hope expressed disagreement with Settlers' reading of earlier House of Lords judgments, in which it was held that they could sometimes be a fair trial, even when little or nothing has been disclosed to the complainant. In other words, even though Settlers was right about the law, he should have pretended the law was what his superiors had claimed, something different. Isn't that rather like saying that a surgeon should have followed hospital protocol and killed the patient, even though he could see that Settlers' course was very dangerous in all the circumstances? I think Settlers was exercising the moral responsibility in transit to legal judgment. He refused to collude in an injustice of the kind that would impede the legitimacy of the whole statutory scheme. His statement of principle is quite uncompromising. He says there's nothing in the nature of a control order, with this potentially devastating effect on the life of the individual affected in his family, which calls for less than the maximum judicial oversight before it's confirmed. Settlers properly aligns the law with the rule of law. The universally valid conditions for the legitimate detention of anyone or mere suspicion with that an ordinary criminal trial. Does the style of interpretation amount to judicial disobedience or improper judicial activism? Only if you think that the law consists in statutory commands that can operate in a moral or constitutional vacuum. If instead you think the law must all satisfy the demands of the rule of law to retain its quality as law, then such derogatory characterizations are very wide of the mark. There's simply nothing to disobey in my view before the correct construction has been determined, and that's not something achievable in ignorance or disregard of the relevant legal principles. Settler joins the pantheon of notable dissentions fighting for the integrity of the rule of law. Think of law chore in crowned against holiday expatisated in 1917, repudiating the majority's view that Zadig had been lawfully detained without trial and the sweeping defence regulations very doubtfully authorised by the defence of the Royal Act 1914. Such arbitrary executive detention was, he said, "poison to the Commonwealth." And Lord Akkin and Leverstead Jananderson in 1942 disputing the majority's reading of regulation 18B, allowing a minister to detain anyone whom he had reasonable cause to believe to be of hostile origin or associations. The court's refusal to treat reasonable cause as a judicially revulable limit was said Akkin more executive minded than the executive. At one level these famous dissents invoke legal tradition, familiar common law standards, but at another level they appeal beyond tradition to a more abstract ideal of the rule of law, the conditions of legitimate government, defining the boundary between law on one side and arbitrary coercion on the other. You can hear it in Lord Hoffman's language in the Belmart case, a more recent case about detention without trial, when he denied that the threat of terrorism constituted an emergency amanting to a threat to the nation within the terms of article 15 of the European Convention. He asked whether the United Kingdom should be a country in which a person who has fallen on the suspicion could be seized and indefinitely detained. There is no clear division between English or UK law and the general principles of right that determine whether state coercion is legitimate, whether there is any genuine obligation to obey what the ports to be binding law. There is no question here of disobedience to wicked law. These dissentions deny that the law was what the majority claimed it was. The law must be interpreted correctly, consistently with basic rights, because otherwise there is no true law to be enforced, only arbitrary official demands. The law cannot coherently flag the ideal of the rule of law which forbids the denial of fundamental rights. What then do we say about the long debate over judicial review of statutes by constitutional courts? It's an institution famously defended by rolled walking and strongly challenged perhaps equally famously by Jeremy Waldron. Is such constitutional review an integral feature of the rule of law or instead an affront to democratic self-government? If follows from my argument I think that the debate is to a large degree misconceived. If as doorkin recognised legal interpretation is a moral enterprise. If the law's requirements depend on moral evaluation, no statute can properly be read as infringing constitutional rights of flattening the rule of law. There may well be misconceptions to condemn and rights to clarify and affirm, but there's nothing genuine to strike down or to clear invalid. The statute applies only to cases in which its application is consistent with legality, with the rights that give concrete expression to our basic values of human dignity and equal freedom. In his article, the core of the case against judicial review, Waldron specifies the assumptions under which his argument against judicial review of legislation chiefly holds. There must be a representative legislature, universal suffrage, an independent judiciary authorised through view executive action, and a strong commitment by most members of society to the idea of individual minority rights, even if they're substantial disagreement about what precisely these rights protect. If there's a bill of rights, it won't settle the issues at stake in the disagreement, what it requires will inevitably remain a matter of dispute among reasonable people. Waldron is seeking to characterize here the liberal democracies that provide the main context for the debate. Waldron argues that under these assumptions judicial review of statute is illegitimate. The people should settle questions about rights through the ordinary legislative process. But these are precisely the conditions in which the distinction between judicial review and judicial interpretation is most elusive. Indeed, illusory. Judicial interpretation's centrally sensitive to rights does all the necessary work. Wald's stood by wider public recognition of these rights and informed by the continuing dialogue about their content in different circumstances. Waldron emphasises a distinction between strong review of the American or Canadian kind and so-called weak review of the UK or New Zealand kind. It's not exactly the strong variety, but his focus on declarations of incompatibility under the Human Rights Act Section 4 shows that he has little appreciation of the interpretive part of firm or strengthened by Section 3. The importance of that interpretive part and accompanying responsibility, his position would look much more ambiguous. Presumably he would disapprove of Section 3, preferring judges to stick to the plain words of the statute, treated largely in isolation from the rights culture he otherwise approves. But would such a pedantic legalism be consistent with the rule of law? And could such a rigid textualism or literalism be reconciled with Waldron's own account of the nature of law and its inherent connection with human dignity as defended in his own today, the William's lecture on how law protects dignity? It's an account of law that emphasises its procedural and deliberative qualities, which are the rational agency of the law subject, who is entitled to argue about the correct application of the law to her own individual case. You can find the lecture published in the 2012 volume of the CLJ. That moral concept of law and its animating ideal, the rule of law, is, I think, an integral feature of liberal democracy, at least in its British version. It means that instead of asking the usual question, whether Parliament's instructions should be followed or evaded or simply repudiated, we should ask a different question. And thus the statutory provision actually mean in the context not only if the rest of the act, but of other relevant statutes and common law doctrine. And crucially, what it means is always a part of function of what it could mean, what it could legitimately mean in a legal order that we treat as a source of genuine rights and obligations. That, I think, was Cook's view, or at least the best way to understand him.