“Inns were traditionally seats of learning, in many areas beyond the law,” Lord Justice Laws, the 2010 Master Treasurer of Inner Temple, points out at the start of our conversation which has been occasioned by Inner Temple’s (then upcoming) conference “Democracy’s Illusions: Challenges to the Rule of Law?”—in which a distinguished gathering of experts from law and academia would debate some philosophical and political issues which are close to his heart. When we parted, he was about to sit down to deal with five applications for permission to appeal (“I have a lot of reading to do”). The two sides of our conversation—philosophy and politics on the one hand and the law on the other—are, one quickly learns, connected.
The limits to democracy
One of the things which interested him in staging the conference was that “everyone takes it for granted” that democracy is “necessarily a good thing”. Churchill’s comment in 1947, “democracy is the worst form of government except all those other forms that have been tried” immediately comes to mind. However, Lord Justice Laws recognises that “not everyone thinks western style democracy is the be all and the end all of political perfections”—“there are more forms of autocracy than there are of democracy”—and so we need to think about what democracy really means.
A classicist by education and a passionate philhellene, he is conscious that our political ancestors, the Athenian democracy, operated with a legislature made up of the entire polity. Democracy can do “a lot of damage” in threatening minorities and producing ill-thought out, short term, sometimes bullying policies. “There is no guarantee that the many will be any wiser than the few”. As someone who believes that it is “a matter of chance how each one of us makes out in the end”, he is sceptical about Jefferson’s justification for democracy, namely that the people are naturally good. “It is necessary to have democracy for the avoidance of tyranny” but it needs to be tempered by “an adherence to the rule of law” so “everyone knows exactly where they are in respect of what government might do”. These include the freedoms provided in the core articles of the European Convention on Human Rights, such as free expression, freedom of religion and freedom of assembly. “I think it is very important to observe dispassionately that merely flashing the word democracy [or ‘rule of law’] up in lights doesn’t answer these dilemmas.” He also thinks that we should emphasise the equal need for duties owed by citizens to the State (“I think a civic society is a society where people remember and fulfil their duties”). “The ancient Greeks understood that”, but we think too little about it. Rights and duties are not symmetrical though; you can waive a right, but not a duty.
The conference is typical of his year as Treasurer. For the students, the Inn staged a weekend at Highgate House discussing the issue of assisted dying, with the speakers including the former Cardinal Archbishop of Westminster (a Bencher). It was a subject “which involves not only waving flags of opinion but thinking quite hard about conceptually difficult issues”. On legal issues, we deal with the challenge of questioning vulnerable witnesses (“it requires imagination as well as anything else. Some people in the law think that if you have a child witness it is enough if the lawyers take their wigs off and then behave as if everyone was an adult”), the problem of interviewing pupils or scholarship candidates (“one of the dangers of interviews is that they can become a vehicle for the interviewer to ask clever questions”) and the modern tendency for justice to get “slower and more expensive”. “We are all victims of technology”, what with barristers giving in to the demands of their instructing solicitors and clients to be encyclopaedic rather than to perform their duty to hone down the arguments. I point out one of his 2009 judgments in which he deplored leading counsel’s skeleton argument which ran for 47 pages when it should have been no longer than 20.
He exemplified practicality in the Al-Saadoon appeal as to whether British armed forces in Iraq should hand over two Iraqis to the civilian government when the British no longer had authority to detain them (see R (on the application of Al-Saadoon and another) v Secretary of State for Defence  EWCA Civ 7). As the UN mandate expired on New Year’s Eve, he and his fellow judges sat on December 30 and 31 to decide the case—“slightly disruptive of Christmas” he recalls, “but a very interesting case to do”. So was Thoburn, the “metric martyrs” appeal (see Thoburn v Sunderland City Council  EWHC 195 Admin), which concerned the competing powers of the European Union and the United Kingdom Parliament (“who is actually running the democracy?” was the question, requiring him to see how the British constitution and the sovereign power could live together). He stated that certain Acts of Parliament are so fundamentally part of our constitution that they cannot be repealed by implication. He appreciates that people can be puzzled by the fact that our constitution is always in a state of flux, but, then, the English prefer to change it incrementally “and not by great leaps and jumps; it saves the shedding of blood”.
A philosophical approach
One had, of course, to end with Greece, where he has a house and where he loves the sea, the landscape and the people, “from whom I have had a thousand unnamed kindnesses”. What, I ask, would he like to read while sitting on the veranda in an evening with a glass of wine and with no judicial homework to do?
“Plato” is the answer, “if only because the dialogue form which he writes in is a very attractive way of presenting philosophical problems”. He would though feel the frustration now that his ancient Greek is rusty and he would need a translation. As for the modern philosophers, he would look at the great works of the language philosophers, J L Austin, A J Ayer (“if only to be annoyed by it again”) and his favourite Wittgenstein, who opened the door “to concentration on the importance of how language is used” (“book” and “goodness” may both be nouns, but “you will never find a bucket with something called goodness in it”). “One of the attractions of the law is that you are involved in honing language to achieve a result. But you have to do it honestly, of course”.
Anything else about the Inn? I ask. “Inner Temple is a happy place” he tells me. And one feels an interesting place to be this year.
David Wurtzel is Counsel’s Consultant Editor
2010: Master Treasurer of Inner Temple
2009: Reader, Inner Temple
2000: Honorary Fellow of Exeter College
1999: Lord Justice of Appeal
1994–present: President of the Bar European Group
1992: An Honorary Vice President, Administrative Law Bar Association
1992–98: High Court Judge (QBD)
1992: Honorary Fellow of Robinson College, Cambridge
1988: Admitted to the Bar of Gibraltar
1987: Admitted to the Bar of New South Wales
1985: Master of the Bench, Inner Temple
1984-1992: First Junior Treasury Counsel (Common Law)
1970: Called to the Bar, Inner Temple
Lord Justice Laws has contributed to various legal journals; Dictionary of Medical Ethics (1977); Supperstone and Goudie, Judicial Review (1992 and 1997) (2nd edn); Importing the First Amendment (1998); The Golden Metwand and the Crooked Cord (1998); Cicero the Advocate (2004); reviews for Theology, Law & Justice. His recreations include Greece, living in London and philosophy.