Sir John Laws
Prominent ‘judicial activist’ who did not always see eye to eye with his nephew Dominic Cummings
SIR JOHN LAWS, who has died aged 74, was a former and longest-serving Lord Justice of Appeal, a leading authority on democracy and public law and one of the most literate and thoughtful members of the bench; he was also an uncle of the prime minister’s chief adviser Dominic Cummings.
During the 1980s, as First Junior Treasury Counsel, Laws advised and represented the government during a time of rapid expansion in the number of cases brought for judicial review of ministerial decisions. From the other side of the fence in the 1990s, however, he became a leading judicial activist who believed that the courts had a duty to protect the public against the dangers of abuse of power by elected politicians.
Fundamental to his approach was the concept that human rights lie at the heart of English common law and must indirectly even affect the doctrine of parliamentary sovereignty. Laws argued that the expanding role of the courts in judicial review offered a systematic protection of people’s rights which no government, even with a large majority in Parliament, had the right to destroy.
In a letter to The Times last year, Laws set out what he called the twofold role of the courts: “Their elementary task is, of course, to keep government and other public powers within the functions allotted them by parliament. But above that they must apply constitutional principles, reason, fairness and the presumption of liberty to the way in which such functions are carried out. The exercise modifies the use of power, and narrows the distance between ruler and ruled. The process is necessary if public power is to reflect, fully, the will of the people.”
Such views were controversial both in parliament and in the legal profession. In 1995 the then shadow Lord Chancellor Lord Irvine singled out Laws for criticism for arguing that it was a function of democratic power that it be subject to what he called a “higher-order law” under which acts of Parliament and decisions made by governments could be struck down. Such views, Irvine suggested, amounted to “judicial supremacism”.
Laws was the older brother of Dominic Cummings’s mother and his relationship with his nephew was remarked upon in September last year when he gave an interview to the New Statesman suggesting that the Prime Minister Boris Johnson could be jailed for contempt of court if he refused to meet an October 19 deadline to request an extension to the UK’S Brexit negotiations – as required by the so-called Benn Act, passed by a “rebel alliance” of opposition MPS and anti-no deal Tories.
There were suggestions that Dominic Cummings believed that the courts would not be able to respond quickly enough if the deadline was missed to prevent the UK crashing out of the EU without a deal at the end of October.
Laws predicted that Supreme Court would hear a case against the prime minister within days if he failed to meet the deadline and that it could issue a writ known as an “order of mandamus” to require him to comply. Failure to do so would be regarded as contempt of court.
In the event the prime minister bowed to pressure and the UK’S Brexit negotiations were extended to the end of January this year.
Laws added that he “wouldn’t care to pass judgment on my nephew”, though observing, charitably: “He’s a very bright chap, Dominic. He can be a bit intransigent. But he talks a lot more sense than nonsense.”
John Grant Mckenzie Laws was born on
May 10 1945 to Dr Frederic Laws and his wife Dr Margaret Ross and grew up in Easington, Co Durham. Educated at Durham Chorister School, and as a King’s Scholar at Durham School, he studied at Exeter College, Oxford as a Senior Open Classical Scholar, graduating with a First.
He was called to the Bar at the Inner Temple in 1970 and in 1984 was made First Junior Treasury Counsel (Common Law). He was made a Recorder in 1985.
Among other cases, in 1991 he successfully fended off an application by the Lonhro chairman “Tiny” Rowland for judicial review of the former Trade and Industry Secretary Nicholas Ridley’s refusal to seek disqualification of the Fayed brothers, Mohammed, Ali and Saleh, from company directorships over their conduct during the takeover battle for Harrods – despite publication of a DTI report which said the Fayeds had lied persistently to win approval for the takeover.
“Dishonesty and deception do not automatically lead to disqualification,” Laws argued, and he urged the court “not to step into the shoes” of ministers when the law said that such decisions should be made by ministers alone.
Laws was appointed to the High Court as a judge in 1992 and knighted. He served on the Queen’s Bench Division until 1998 and the following year he was appointed Lord Justice of Appeal and sworn of the Privy Council.
His most notable case, in 2002, was that of Sunderland market trader Steve Thoburn – known as the “metric martyr” – who went to court for the right to sell fruit and vegetables in pounds rather than kilograms. Thoburn’s lawyers had argued that the 1985 Weights and Measures Act, which permitted the continued use of imperial units, had “impliedly repealed” a section of the 1972 European Communities Act under which metric measures were introduced.
Laws ruled that on accession to the EC the UK had acknowledged the supremacy of EC law. The 1972 Act was therefore a constitutional statute, which meant it could not be “impliedly repealed” without specific legislation. His ruling, regarded as a landmark in setting court precedents above laws made by elected politicians, was later upheld by the Law Lords.
In 2010 Laws hit the headlines when he turned down a marriage guidance counsellor’s application for permission to appeal against a decision of the Employment Appeal Tribunal that he had not suffered discrimination when he was dismissed from his job for refusing to counsel same sex couples because of his Christian beliefs.
Laws ruled, controversially, that Christian beliefs have no right to protection by the courts, observing that Britain would become a theocracy if the views of a single faith were given a priority over others in legal matters: “Law for the protection of a position held purely on religious grounds cannot be justified,” he declared. “It is irrational, as preferring the subjective over the objective. But it is also divisive, capricious and arbitrary.”
In 2013 Laws questioned the principle laid down a decade earlier by the then senior law lord Lord Bingham that the European Court of Human Rights should have the last word on interpreting the human rights convention. “There may perfectly properly be different answers to some human rights issues in different states on different facts,” Laws argued. “The Strasbourg court should recognise this and refrain from making marginal choices about issues on which reasonable, humane and informed people may readily disagree.”
After retirement from the bar Laws was elected a visiting professor of legal science at Cambridge University.
A gregarious man of enormous charm, utterly lacking in pomposity, Laws had a quick and lively wit and was popular with colleagues and civil servants with whom he worked.
In 1973 he married Sophie Marshall, a lecturer in theology at King’s College, London, with whom he shared a love of Greece and cats. She died in 2017.
Laws died in hospital, where he was originally being treated for sepsis and other conditions. He was subsequently diagnosed with Covid-19.
He is survived by a daughter.