Now you see it

Alan Watkins

The Politics of the Judiciary J.A.G. Griffith (Fontana/Collins paperback £1.25) My friend John Griffith of the LSE must feel quite pleased with himself. And with some reason. His comparatively short book has already been described in the Guardian as 'a minor classic'. It has been made the subject of a broadcast by Lord Hailsham, It has also aroused the indignation or the scorn of one of Griffith's colleagues at the School, Kenneth Minogue. In a review in the Times Literary Supplement Minogue wrote: 'As it is a fundamental principle of natural justice that no man should be judge in his own cause, Professor Griffith ends up aligned with the Baader-Meinhof gang in believing that every criminal trial is categorically unjust.' Cries of 'Smear!' from Bernard Crick, a former colleague of Griffith and joint editor of the, series of which the book is a part. Further cries of 'Foul', 'Send Minogue off' and 'Show him the yellow card' from assorted left-wing professors in the columns of the TLS. Dons fall out – nothing to touch it as a spectacle, my dear Sir –no one to equal them for bile – House of Commons not in it – diverting, very.

But should the controversy be a cause of more than diversion? Is there a serious point involved? Yes, there is. Or, rather, there are several points. Let us begin with Griffith's thesis, which is both simple and subtle. The dominant or orthodox view of the English judiciary is that it is the principal protector of the citizen against the State or, at least, that it is a buffer between authority and the individual. This view largely derives, though Griffith does not say so (not in his book anyway), from the part the lawyers played in the constitutional struggles of the seventeenth century. Admittedly the courts often found for the King; it is only recently that constitutional historians have been able to bring themselves to admit that the Crown had a lot of law in its support. No matter: on the whole the lawyers were on the right side as defined by the Whig historians. So they have remained sturdy individualists, whether as practising barristers or as judges.

It is not really like this at all, says Griffith. The judicial bench is not a protector or a buffer. Nor is it an arbitrator between citizen and government. It is itself part, and a most important part, of the machinery of government, of the apparatus of the State. It follows that the judiciary will tend to favour authority in preference to the individual. Note that Griffith does not say that the judges are secret Conservatives, that they take instructions from ministers or that they are forever looking over their shoulders. They are simply doing their job as supporters of authority.

Griffith, though no Marxist, adduces a class argument aswell. By the nature of their trade, judges come from a restricted section of the population. Moreover the bar as a profession is adept at imposing its own standards (or 'values' as the sociologists like to say) upon new entrants. Oddly enough, this point is made more strongly by Roy Jenkins in a review (1964) of Heuston's Lives of the Lord Chancellors 1885— 1940 (1964): 'The bar, despite its long period of unremunerative waiting, was a career open to the talents at least so far as the whole middle class was concerned. It was the principal means by which men of limited means and no elevated connections could be brought into the high service of the State, and could themselves found families of wealth, rank and influence . . . Self-made businessmen brought considerable traces of Birmingham brass foundries or Lancashire cotton mills with them. They were also sometimes impatient of a past which did not seem to belong to them. Self-made lawyers, from the point of view of the established order, suffered from no such disadvantages. Their training, duties and aspkations made them even more wedded to tradition than any heredit ary magnate with whom they happened to sit in Cabinet.'

Griffith produces a bit of (by his own admission) unoriginal, derived evidence to show that judges come largely from the upper middle class. Who would have supposed anything else? But he plays down the genuine opportunities which the bar pre sented. Take for example the present Law Lords. It is possible to argue that the Welsh grammar schools, with Lords Elwyn-Jones (Llanelli) and Edmund-Davies (Mountain Ash) have done precisely as well as the 'Clarendon' schools, with Lords Wil" berforce (Winchester) and Dilhorne (Eton). The rest are people in between. Again Simon, though a Fettesian, was the

son of a nonconformist minister; while Birkenhead – who admittedly exaggerated his

early hardships – was the son of an NCO. However, given the legal profession's gift for assimilation this bias in Griffith's account does not matter too much.

His account contains a more dangerous fallacy. And as he possesses what is, for all academic lawyer, or indeed for anyone, nice turn of phrase. a beguiling way of putting things, he may deceive some uncritical spirits. The fallacy or, if you prefer it, the trick – though I do not accuse Griffith of anY deliberate deception – is to confuse three things: class law, authoritarian (or Pro" government) law and laisser-faire law. These notions often conflict with one another. Griffith does the peaunder-the-thimble trick. Now you see it, now you don't. Whatever the judges do call be made to seem in support of 'authority' or 'the establishment'.

Let me give an illustration which Griffith mentions but of which he does not make very much. It is the case of the Burmah Oil Co. During the last war the company was compelled by government order to destroy various installations in Burma. It conducted protracted litigationo recoup the cost of its destroyed properties. The Treasury was opposed to any such reimbursement. It was supported by successive Conservative and Labour governments. The House of Lords, however, held 3-2 in the company's favour. It was left to the 1964 Labour Government (a Conservative government would have done the same) to reverse the decision retrospectively; so that the company did not receive the money to which, according t° • the Lords, it was entitled. Griffith is, I fear, a little naughty in his account of this action by the then government. He writes that the Lords decision was 'nullified'. According to one interpretation of the word he is no doubt correct. However, he does not make clear that the Lords decision was reversed not only for the future but for the past also.

In fact Griffith (in the comparry of the sinister Lord Wedderburn and other lefty dons) wrote a letter to The Times approving the then government's retrospective legislation. This, however, is not the immediate point. The point is that whatever the Lords had decided could have been made to fit the Griffith thesis. If they had decided in favour Of the Government or, rather, of the Treasury, they• would have been an arm of the Administration; would have been applying authoritarian or pro-Government law. If, oil the other hand, they had decided in favour of the company, as they did, they would have been applying class, laisser-faire or property owner's law. There is a more fundamental objection still to the Griffith thesis. By its very capacity to accommodate all kinds of judicial action under its umbrella, it can impose a bogus consistency not only between case and case but between period and period. In a span extending, I should estimate, from the first World war to the early 1960s the judiciary was wary of intervening in ministerial or local government action. Authoritarianism walked hand-in-hand With an anti-laisser-faire philosophy irrespective of the political colour of the government or local council involved. Every 'aw student knows Lord Atkin's observations about the judges' being more executive-minded than the executive, and arguments' being addressed to the court Which might have been addressed to a court in the reign of Charles I. 'The minister's decision is final', 'we cannot go behind the Words of the Act' — such were the judicial catchphrases of the period. Many of the relevant cases were about housing, planning, compulsory purchase. Authority was aging in support of the interests (or what were then misguidedly conceived as the interests) of the working class.

Though, as I say, this period could be accommodated easily enough under the Griffith umbrella, he does not make much of it; maybe because it does not suit his overriding purpose to depict the judiciary as an instrument of collectivism. No, his illustrations are compiled largely from the new Period of judicial intervention. Here his account amounts to little more than that the courts tend to intervene in favour of Laker Airways and Conservative local authorities Which are opposed to comprehensive schools; and against students and trade unions. But if the unions are as powerful as everyone says they are — if they are in effect an arm of government — surely the courts,

according to the Griffith thesis, ought to favour them? In reality the courts are not nearly so opposed to the unions as Griffith claims.

He has, I think, got himself into a bit of a muddle. If he tells me that judges are on the

Whole conservative, that is not at all surPrising. If, however, he goes on to tell me, as he does, that judges must by the very nature of their job support governmental author

ity, it is very difficult to know what anyone can do about it. The conclusion is immut able, fixed by the premisses: rather as two 4nd two's making four is entailed by the definition of four. Would the position be

[any different, or any better, if judges were

drawn from such as Griffith himself, or the Pervasive and ubiquitous Wedderburn? I ans not at all sure that, it would. On the contrary, my old friend!'