Reviews
| Published date | 01 January 1980 |
| DOI | http://doi.org/10.1111/j.1468-2230.1980.tb01584.x |
| Date | 01 January 1980 |
REVIEWS
LAW
AND
POLITICS.
THE
HOUSE
OF
LORDS
AS
A
JUDICIAL
BODY
1800-1976.
By
ROBERT
STEVENS
[Law
in Context, Weidenfeld
and Nicolson,
1979.
xviii and
701
pp. (incl. Appendices,
Bibliography, Index of Cases and Index). Hardback
€1830.1
PROFESSOR Stevens has spent many years writing this book.
He
intended
it to be important.
He
has succeeded but neither to the extent nor in the
way that he desired.
He
says in his Prologue he sought
"
to assess the judicial
role of the House of Lords as part of British society and of British govern-
ment
. .
.
to describe and evaluate in policy terms the legal doctrines that
the House developed
.
,
.
from
B
historian's point of view, what, over time,
have been seen as the relationships between law and politics in England.
From
a
sociological point of view,
the
book begins to examine
the
relationship
between the persona of the law Lord, his attitudes and predispositions, and
the development of the law. From
a
jurisprudential point of view, the book
looks at the changing role of judges in making law in the light of political
developments
.
. .
From the practising lawyer's point
of
view
.
.
.
this book
.
.
.
analyseCs1 the development of technical doctrines in the light
of
other
historical factors."
Such tasks are surely beyond the skills of
a
whole army of Benthams
or
a
whole Law Faculty of Blackstones. And these authors had
the
advantage
over Stevens in that they wrote in a more certain age. However, it is to his
credit that he has provided something of more than marginal utility to
specialists in each
of
these fields.
So,
also, although he laments the lack of
an English Realist School, he has
at
least provided a rare synthesis based on
American Realism and English
sources.
The book has numerous strengths. One is that it provides short evaluations
of each of the judges who have sat in
the
Judicial Committee in the period
covered. These evaluations are mostly devoted to the development of legal
technique rather than
a
sustained discussion of the substance of legal doctrine.
A second strength is that the book is, after the American fashion, copiously
laced
with
folatnoites. One
reason
why
this
technique
is
a
strength rather
than
a
weakness
is
that
these
notes refer to numerous extra-judicial and non-legal
sources
rather than merely suffering from what Karl Llewellyn called
"
cititous."
A third strength of the book is the integration of history and law it shows
as
regards
the
nineteenth century.
In
particular
it
casts
a
more refined light
on
the reasons for the development of the doctrine that is commonly said to have
culminated in
London
Street Tramways
Co.
v.
L.C.C.
C18941 A.C. 489. True
it
is
quaint
to
find
a
modem author writing
of
"
pure
democracy
"
as
existing
in England in the nineteenth century
(or
indeed as existing anywhere
or
anytime) nevertheless Stevens demonstrates that the growth of that doctrine
was related both to the growth of legislative activity and the increasing power
of the Commons as the supreme estate
of
the realm. One part of this saga
was the way in which the Judicial Committee was almost abolished in the
mid-1870s and the curious reason why it was reinstated
or
retained by
Disraeli.
Useful
as
the
work
is,
it
has
its
faults. In
part
these
a~
caused
by Stevens'
own intellectual make-up.
He
is, he says, an Americanised English lawyer.
It
is
manifest that he has acquired some knowledge
of
general ninetcenth-
century history. However, he appears to have less reason to be
sure
of his politi-
cal judgment as he moves towards the modern age. In one respect this is shown
by his statement that Dalton's rates of super-tax
"
seemed intolerable." The
objection is not that Stevens has formed a
particular
view of those rates
of
89
VOL.
43
(1)
4
90
THE MODERN LAW REVIEW
LVOl.
43
tax but that he formed
any
view. Indeed
this
is
not
the
,true objection. Rather
it is that he has allowed any view (as it happens one that is fashionable
among today’s Treasury Ministers) to affect his description of the wisdom
of the Judicial Committee’s approach to taxing statutes.
In another respect too his lack of sensitivity to political matters shows
itself. Harold Laski once wrote: “The result of the ignorance of, and hostility
to the trade unions of
the
judges of
the
last age brought the Labour Party
into being.”
(Parliamentary Government in England).
Whether
or
not Laski
was referring to
Taff Vale, Osborn,
or
Roberts
v.
Hopwood
matters not.
They are illustrative of the point he was making about
the
relationship of
the
courts to the wider Labour Movement. It is a relationship which Stevens
hardly touches upon.
It
is
however surely
going
too far to suggest that
‘Ithe
British working man felt by
1940
that he was increasingly receiving
a
fair
deal from the courts.”
Throughout the book there is heavy emphasis
on
such doctrines, themes
and reasons as can be gleaned from legal sources. The result
is
that it says
more of
the
impact of extra-legal events
on
the law than
the
other way
about. However, it is a surprising technique in
a
work which is as ambitious
as
set out above and which is
“
based on
the
tradition most strongly articulated
judicially by Holmes and Cardozo.”
Stevens does not like what he calls “substantive formalism,” by this term
he appears to mean that kind of doctrinal analysis which denies the creative
function of appeal courts.
He
suggests that such an approach leaves those
courts as “eunuchs” and that as regards a second level
of
appeal court if
its only itask
is
“to
redefine the refined”
it
might
as
well
be
abolished.
It is an interesting hypothesis and
one
which
needs
careful elaboration before
it can readily be accepted. If, as Stevens says, there
is
a tension between the
traditional roles of the Legislature and the Judiciary (roles from which
the
adjectives
legislative
and
judicial
are
derived) and that in England we have
used formalism in the courts to relieve
the
tension, then what
is
to happen
to
that tension
if
we dismiss
our
traditional formalism? It is
this
question
that Stevens largely avoids. He does assert for example of Lord Reid “as a
former politician he had an innate sense of the relationship of the legislature
and the
cmrts”
or
as
regards Lord Somervell and
Lord
Donovan
their
overall style “suggested that political experience was likely
to
provide
a
sound basis for handling the creative elements inherent in
the
work
of
appellate judges. Such experience was also likely to provide political wisdom
as to the directions in which the law should be developed.”
There is some truth in this. However, there is danger too.
He
writes at
the end: “The next decade will show whether the appeal judges are capable
of providing
a
rationale that will at a minimum make them an essential
element in the British Constitution and, ideally, raise the issue of whether
they might not appear as the junior partners of Parliament in the lawmaking
process.” Just as
our
law develops
so
also does the body politic. Experience
of the past may help but as time passes it becomes a less reliable guide.
So
long as we insist on not merely having undismissible judges but also the
other devices which separate judges from the political process,
e.g.
the
Parliamentary rules relating to the criticism
of
judges
or
the
formal current
practices of apolitical appointments,
so
long will it be desirable that judges
seek to minimise their creative
role.
It is all very well
to
say with Lord
Mansfield
C.J.
as
so
many judges do
(R.
v.
Wilkes
(1770)
4
Burr.
2527, 2562):
“
The constitution does not allow reasons of State to influence
our
judgments:
God forbid it should! We must not regard political consequences; how
formidable soever they might be: if rebellion was
the
certain consequence.
we
are
bound
to
say
fiat
justitia, rum
caelum.’
”
However,
this
is
the
statement
of
the judge sitting judicially. Lord Mansfield says:
“The
constitution trusts
the King, the reasons of State and policy.” May one not legitimately fear
that the heavens will indeed fall if the King
(or
any part of the legislature)
echoes Mansfield‘s famous dictum.
Jan.
19801
REVIEWS
91
Professor Stevens has therefora provided
a
work
of
scholarship more useful
than incisive but one which advances the arguments
across
the many fields
in which he writes and which doubtless will be referred to by scholars in
the yean which lie ahead.
JOE
JACOB.
THE
DARKER
REACHES
OF
GOVERNMENT.
By
ANTHONY
MATHEWS
[Capetown: Juta
&
Co. Ltd.
1978.
xx
and
245
pp.
R
1750.1
THIS
book considers the law on access to information about public administra-
tion in the United States of America, the United Kingdom and South Africa.
Professor Mathews starts from the premise that
a
substantial measure of
openness in public administration should characterise a democracy, though
he recognises that there are legitimate areas of secrecy. He reviews the,
predominantly statutory, law and the practice relating to secrecy and open-
ness within the different socio-political frameworks of the three countries
and makes proposals for reform.
While in the Preface he questions whether the
gulf
between South Africa
and the other countries is not now too great to make comparison meaning-
ful, it comes as something of a shock to an English reader
to
find “the
general body of laws designed
to
make Government business secret (in
South Africa) is substantially similar to the corpus of laws that are operative
in
the United Kingdom.” (p.
154).
The judgment is perhaps unfair in view of the censorship provisions
of
the
Prisons Aot
1977
and the Publication Act
1974
and major differences emerge,
as he makes clear, in the ways in which the laws are applied but this is
scarcely
a
matter for complacency.
Professor Mathews emphasises that any system of disclosure must be
subject to exceptions and those which he recognises are broadly those with
which we have become familiar from, amongst others, the report of the
Franks Committee and the proposals of the Outer Circle Policy Unit.
Perhaps too readily he accepts as a justification for protecting advice and
deliberation “the need
to
secure frank and disinterested advice and con-
sideration
of
all possible policy options and perspectives”
(p.
81)
without
examining what level of protection
is
necessary-must it be for all time,
would anonymity of the adviser be sufficient, might there be compelling
arguments the other way? The Oregon Public Meetings and Public Records
Law
1973,
which he discusses, allows for a balancing of interests in this area
and yet he does not discuss whether such
a
solution might have wider
application.
The proposals for reform in the three countries are inevitably very
different. The United States of America needs on!y minor amendments; in
South
Africa he can do little more than search for bodies which might
initiate change; his major programme of reform concentrates on the United
Kingdom. He proposes a two-stage statutory reform, first requiring publica-
tion of departmental organisational structures and staff manuals (on the
Freedom of Information Act model) and secondly providing for a full
system of registration, indexing and d,isclosure of documents, subject to
exceptions (on the Swedish model). It
is
arguable that the greater flexibility
of departmental administration in this country, coupled with the emphasis
on Ministerial responsibility rather than individual accountability of civil
servants, would make his first stage largely irrelevant (it would preclude dis-
closure of the Supplementary Benefits “A” Code for exactly the reasons
given by the former Secretary of State), and that the second stage,
if
we ever
reached it, would be unduly cumbersome and expensive. why require indexing
of information which no one will ever want to see? The Danish solution
of
identification by subject-matter would be more flexible and inexpensive,
leading to indexing only in the areas of greatest demand.
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