Balancing Competing Interests in Law Making

Introduction

Law making involves difficult choices. Legislators must balance competing values, interests, and rights when creating new laws or reforming existing ones. This lesson examines some of the most fundamental tensions in law making:

• Individual rights vs public interest
• Morality and law — the Hart-Devlin debate
• Parliamentary sovereignty and law making post-Brexit
• The tension between parliamentary sovereignty and the rule of law
• The role of the judiciary in protecting rights

These themes run through every area of law making studied in this course and are essential for demonstrating high-level analytical and evaluative skills at A-Level.

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Individual Rights vs Public Interest

One of the most fundamental tensions in law making is between individual rights (the freedoms and protections of individual citizens) and the public interest (the wider needs and safety of society as a whole).

The Tension

Individual Rights	Public Interest
Freedom of expression	Prevention of hate speech
Right to privacy	National security and surveillance
Right to liberty	Detention of terrorist suspects
Right to protest	Maintaining public order
Bodily autonomy	Public health measures (e.g., vaccination)
Property rights	Compulsory purchase for public projects

Examples in Legislation

Counter-Terrorism Legislation

Counter-terrorism laws illustrate the tension starkly. The Terrorism Act 2000, Anti-terrorism, Crime and Security Act 2001, and Terrorism Prevention and Investigation Measures Act 2011 all restrict individual freedoms in the name of national security.

A (FC) v Secretary of State for the Home Department [2004] (the Belmarsh case):

• Foreign terrorist suspects were detained indefinitely without trial under the Anti-terrorism, Crime and Security Act 2001
• The House of Lords held (by 8-1) that indefinite detention without trial was incompatible with Articles 5 (right to liberty) and 14 (prohibition of discrimination) of the European Convention on Human Rights
• Lord Hoffmann stated: "The real threat to the life of the nation...comes not from terrorism but from laws such as these"
• A declaration of incompatibility was issued under section 4 of the HRA 1998

Significance: The Belmarsh case demonstrates the judiciary acting to protect individual rights against the government's assessment of the public interest. The government subsequently replaced indefinite detention with control orders (later TPIMs).

COVID-19 Restrictions

The COVID-19 pandemic raised acute questions about balancing individual rights with public health:

• Lockdown restrictions curtailed freedom of movement, association, and worship
• The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 were made under delegated legislation, raising concerns about parliamentary scrutiny
• The government argued that restrictions were necessary to protect life (Article 2 ECHR)
• Critics argued that restrictions were disproportionate and insufficiently scrutinised

graph TD
    A["Law Making Decision"] --> B{"Balance Required"}
    B --> C["Individual Rights"]
    B --> D["Public Interest"]
    C --> E["Freedom of expression"]
    C --> F["Right to liberty"]
    C --> G["Right to privacy"]
    D --> H["National security"]
    D --> I["Public health"]
    D --> J["Prevention of crime"]
    E -.->|Tension| H
    F -.->|Tension| H
    G -.->|Tension| H
    style C fill:#3498db,color:#fff
    style D fill:#e74c3c,color:#fff

Proportionality

The European Convention on Human Rights (and the Human Rights Act 1998) addresses this tension through the concept of proportionality. Many Convention rights are qualified — they can be restricted, but only if the restriction is:

1. Prescribed by law — the restriction must have a clear legal basis
2. Pursuing a legitimate aim — e.g., national security, public safety, prevention of crime
3. Necessary in a democratic society — the restriction must be proportionate to the aim pursued

This framework provides a structured approach to balancing rights and interests, but the application of proportionality is inherently judgmental and can produce different results in different courts.

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Morality and Law: The Hart-Devlin Debate

The Wolfenden Committee (1957)

In 1957, the Wolfenden Committee published a report recommending the decriminalisation of homosexual acts between consenting adults in private and changes to the law on prostitution. The Committee's central argument was:

"There must remain a realm of private morality and immorality which is, in brief and crude terms, not the law's business."

This recommendation sparked one of the most important debates in legal philosophy: should the law enforce morality?

Lord Devlin's Position

Lord Devlin (Sir Patrick Devlin, a judge and legal philosopher) argued against the Wolfenden Committee's approach. In his 1959 lecture "The Enforcement of Morals", Devlin contended that:

1. Society has a right to enforce moral standards — a shared morality is the "cement" that holds society together
2. Immorality threatens society — if immoral behaviour becomes widespread, it can weaken the social fabric and threaten the existence of society itself
3. The law should enforce moral standards that ordinary, reasonable people (the "man on the Clapham omnibus") would consider immoral
4. There is no purely "private" morality — all immoral behaviour, even in private, affects society

Devlin used the analogy of treason: just as treason threatens the political structure of society, widespread immorality threatens the moral structure. Both justify legal intervention.

Professor H.L.A. Hart's Position

Professor H.L.A. Hart (Oxford legal philosopher) responded to Devlin in his 1963 work "Law, Liberty and Morality", drawing on the philosophy of John Stuart Mill. Hart argued:

1. The law should not enforce morality simply because it is morality — the state should only interfere with individual liberty to prevent harm to others (Mill's Harm Principle)
2. Private morality is not the law's business — consenting adults should be free to behave as they choose in private, provided no harm is caused to others
3. Society does not disintegrate because of private immorality — Devlin's "social disintegration" thesis is empirically unsupported
4. Moral standards change over time — enforcing the morality of one era may become oppressive in the next
5. The law should protect individual autonomy — people should be free to make their own moral choices

Comparison: Hart vs Devlin

Issue	Lord Devlin	Professor Hart
Should law enforce morality?	Yes — shared morality holds society together	No — only to prevent harm to others
Private behaviour	Affects society; law may intervene	Not the law's business if no harm
Basis for law	Community moral standards	Individual liberty and harm prevention
Social change	Moral consensus determines law	Law should protect autonomy, not enforce morality
Risk	Legal moralism may oppress minorities	Moral relativism may undermine social cohesion

Impact on Legislation

The Hart-Devlin debate has had lasting significance:

• The Sexual Offences Act 1967 decriminalised homosexual acts between consenting adults in private (aged 21+; later reduced to 18 in 1994 and 16 in 2000)
• The Suicide Act 1961 decriminalised suicide — reflecting a shift away from enforcing moral/religious views through criminal law
• The Abortion Act 1967 legalised abortion in certain circumstances
• The Marriage (Same Sex Couples) Act 2013 legalised same-sex marriage
• The debate continues in areas such as assisted dying, drug legalisation, and euthanasia

graph TD
    A["Wolfenden Committee 1957"] --> B["Should law enforce morality?"]
    B --> C["Lord Devlin: YES"]
    B --> D["Professor Hart: NO"]
    C --> E["Shared morality holds<br/>society together"]
    C --> F["Immorality threatens<br/>social fabric"]
    D --> G["Harm Principle:<br/>Only prevent harm to others"]
    D --> H["Private morality is<br/>not the law's business"]
    style C fill:#e74c3c,color:#fff
    style D fill:#3498db,color:#fff

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Parliamentary Sovereignty and Law Making Post-Brexit

Parliamentary Sovereignty Reasserted

The UK's departure from the European Union on 31 January 2020 has had profound implications for the balance of power in law making.

Before Brexit:

• EU law had supremacy over domestic law (established in Costa v ENEL [1964] and given domestic effect by the European Communities Act 1972)
• UK courts were required to disapply domestic legislation that conflicted with EU law (R (Factortame Ltd) v Secretary of State for Transport (No. 2) [1991])
• This was seen by many as a limitation on parliamentary sovereignty