Justice changing gear to keep up
Michael Beloff
THE ENGLISH JUDGES by Robert Stevens Han Publishing. £22.50, pp. 169, ISBN 1841132268 Fifty-one years ago no one would have written this book, and, if someone had, no one would have read it. The constitution was not changing; and the judges' role as the third arm of government would have been of interest, if at all, to lawyers only. It was minimal and marginal. Judges still proclaimed themselves as not creating law but discovering it. Their approach to statutory construction was literal, not purposive; indeed some tended to regard legislation with the disdain of a supercilious examiner for the work of an under-educated schoolboy. The concept of public law had not yet permeated the judicial mind: the courts even held that natural justice (or fairness) had no application to ordinary administrative action, itself seen as an exercise from review of which judges would abstain. Judges did not give press conferences, appear on television, or even write letters to the newspapers; in London they congregated in their Inns; on circuit they were immured in their lodgings.
But by the turn of the millennium both the context and the judges' contribution had changed. The jury may be out on the legacy of the Blair administrations to Britain, but the codicil of constitutional reform may prove the most durable part of the inheritance. Devolution, quasi-reform of the upper chamber, the domestication of the European Convention on Human Rights are a significant testamentary trinity. The first and third have provided new material on which judges can work; but of their own motion they had already turned a stagnant pool into a fast-flowing river.
Many reasons can be advanced for this silent revolution. The procedures of the High Court were reformed to allow the litigant to choose appropriate remedies a la carte rather than from a fixed menu. Academic writers, notably de Smith, Street and Wade, gave coherence to a shapeless subject and stimulated interest in public law in
the academies. The United Kingdom's accession to the Treaty of Rome gave powers to an international court, the European Court of Justice at Luxembourg, in whose activities British judges and advocates participated, and in consequence imported from mainland Europe concepts previously unfamiliar to the common law — legitimate expectation, proportionality, legal certainty, which underpin the relentless onward march of judicial review — but also — unperceived at the time — to British courts to clisapply legislation incompatible with community law. The influence of personality, too, was as potent in judging as in politics — Lords Reid, Denning, Diplock, Wilberforce, Bingham and Woolf were cut from a different cloth to their predecessors, not partisan (and often failed) politicians like the judges of a century before, but proponents of principles which corralled politicians of all parties. In two periods, the ages of Thatcher and Blair, of dominant governments, the judiciary became in effect Her Majesty's loyal opposition.
Nor were they unconscious of their new attitudes. Lord Reid in a famous lecture in 1972 exploded the view that judges only discovered but did not make law as a fairytale; amending the metaphor, Sir John Laws said in another lecture in 1995 that, in the area of public law, to say that judges were seeking only to ascertain the intention of parliament was to make use of a 'figleal which should be discarded. The boldness of the proposition that judges could impose their own values on administrative action was itself an expression of judicial virility.
However, when in the limelight they found themselves in the firing line too. I once unsuccessfully resisted a claim brought by the Reverend Moon against the Home Office to quash an order refusing to grant him permission to enter the United Kingdom. Within hours of the judgment being handed down by Mr Justice Sedley no card-carrying conservative he — Michael Howard was on the phone to me expostulating about what he clearly regarded as a preposterous ruling. The next day a Jak cartoon appeared in the Evening Standard with a doleful Howard standing in the dock, and the judge saying, 'If I have you before roe once more. Home Secretary, I shall consider a custodial sentence.'
David Blunkett's track record is scarcely better than that of his Tory predecessor. He seizes magpie-like on extracts from writings by Wade and myself to support his thesis that we should be ruled by judges not by jurisprudence and reflecting more crisply an advocacy of judicial restraint articulated in public addresses by both Cherie Booth and Lord Irvine, whose enthusiasm for judicial review in the years of opposition was in inverse proportion to his proximity to the woolsack.
These developments are chronicled by Robert Stevens, sometime Master of Pembroke, and a long-time student of the judiciary, with characteristic elegance, irony and balance.
I should declare an interest. In the last paragraph of the last page of the last chapter the author suggests that I would obviously be a strong candidate for a final appeal court. He might say so, but I couldn't possibly comment. I had, however, formed my view of the merits of this book long before that.
Michael Beloff QC is President of Trinity College, Oxford.
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