REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1995.tb02000.x |
| Published date | 01 January 1995 |
| Date | 01 January 1995 |
REVIEWS
Robert
Stevens,
The Independence of the Judiciary: The View from the Lord
Chancellor’s Office,
Oxford: Clarendon Press,
1993, 184
pp, hb
€25.00.
After an introductory chapter on the early period from
1884,
three chapters cover
the period from
1915
to
1944
when Claud Schuster was permanent secretary of the
Lord Chancellor’s Department. These are followed by four chapters on the era of
Napier and Coldstream
(1944-
68),
one chapter called ‘vignettes from the end of
empire,’ and a final epilogue on the last three decades. The selected topics include
machinery of government, the fracas over pay in the early
1930s,
choosing judges,
the break-up of the Judicial Committee, relations with the executive, the uses of
the judiciary (particularly on restrictive practices), judicial salaries since
1945
and
some aspects of ‘the Perpexing Problems of Judicial Independence.
’
Robert Stevens has already made a major contribution to modem legal history,
especially in his study of the House of Lords as a judicial body,
Law
and
Politics
(1979).
This book does not attempt to consider the detailed impact made on society
by individual Chancellors or to challenge Heuston’s writings. Based largely on the
papers of the Lord Chancellor’s Office and Department, it considers ‘how far, and
with what political guidance, the civil servants should be choosing members of the
judiciary, or what role the judges themselves should play in deciding appointments
and terms of service, and in running the courts.’
It is easy to agree with the author that such an analysis ‘is best attempted
historically.’ Indeed, there is no real alternative, as the matters which over the
years have most concerned the Department, although they recur, do
so
in political
and economic circumstances
so
diverse that an analysis based on a concept such as
the separation of powers could not be sustained. Stevens says, rightly, that that
concept has not ‘been subject to the most rigorous of analyses.’ Nor could it be, for
each of the three major institutions has, over the last
80
years, been changing
so
frequently that their relationships, and the powers they exercise, present no
consistent pattern.
So
also, as the author makes clear for us, have the characteristics, the roles and
the functions of the Lord Chancellor’s Department. In most recent times, the
response of individual judges (including the most senior) to the present Lord
Chancellor’s proposals for reform, and the protest by the then Vice-Chancellor
Browne-Wilkinson in
1988
at the managerial and financial powers being exercised
over the administration of justice, do not have earlier parallels.
Schuster was the major influence in shaping the Lord Chancellor’s Department
and he is seen as a high-class administrator in the traditional mould of permanent
secretaries, influencing some Lord Chancellors more than others but always at the
heart of affairs, seeking to correct what he saw as faults in the mechanism or errors
of judgment by his political masters. And what a variety of masters he had:
Buckmaster, Finlay, Birkenhead, Cave (twice), Haldane, Hailsham (twice),
Sankey, Maugham, Caldecote and Simon.
Stevens tells us that even before the publication of Hewart’s
The
New
Despotism
(1929),
Schuster was drafting the terms
of
reference of the Committee on
Ministers’ Powers and, writing for Sankey, noted that it was ‘highly expedient that
the Government should be beforehand in this matter and should have indicated the
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desire to investigate it before such a publication stirs up further public excitement
on the question.
’
So
the Donoughmore-Scott Committee originated, powerfully
packed with the three senior civil servants: Warren Fisher, John Anderson and
Claud Schuster himself, a trimvirate whom ‘many felt ran Whitehall in the 1930s.’
Stevens says the Report of the Committee assumed ‘that statutes could be
interpreted literally and impartially’ and records Laski’s dissent on the ground that
the Committee regarded a judge as an ‘automatic slot-machine into whom you put
the statute and
from
whom you get a construction in which there is no articulate
major premiss.’ Sixty years later
(see
below), Stevens
calls
the Committee’s
assumption the traditional view of the
Left.
Some mistake somewhere. Stevens
does not record (no reason why he should) that Schuster
tried,
with some success,
to demolish Robson’s evidence to the
Committee
(Justice and Administrative
Law
was published in 1928). Later, Robson said Schuster was ‘the member of the
committee who had given least thought to the problem and the one who was least
able to express himself coherently’ and some of whose remarks were ‘a mere
substitute for thought.’ It seems more likely that Schuster knew clearly enough
what he wanted the Committee to conclude (as the terms of reference indicated).
The style of much of the book is anecdotal, but none the worse for that. It shows
the dangers of elevating the judiciary to the heights of propriety and dignity when,
inevitably, since they
are
human and fallible like the rest of us, they will be seen as
worrying about their salaries,
their
tax situation and the indignities of travelling in
public vehicles.
All of this is very well done and the stories illuminate the text. Should Gilbert
Beyfus be a judge? ‘You may well think, however, that other considerations apart
from his age, put him out of the running.’ Was it that after a birthday at the Savoy,
Beyfus had climbed a pillar? Or was the Office uncomfortable with his theatrical
friends, his interest in greyhound racing and the suicide of his solicitor cousin?
Then there was the huge fuss when the Pope appeared to say in 1949 that judges of
the Roman Catholic faith (surely he did not say ‘Roman’?) should not grant civil
divorces. Jowitt raised the matter in Cabinet, suggested that Labour appoint no
more Catholic judges in the PDA Division (there was only one) and require that
other judges give a clear statement that they did not regard themselves as bound by
the Pope’s pronouncement. Jowitt confessed that the pronouncement of the Bodily
Assumption of the Virgin Mary filled him with despondency. Then he made
inquiries of the British Minister to the Holy See as ‘our public is deeply disturbed.
’
Ernest Bevin joined in, trying to cool Jowitt, and Kenneth Younger at the FO ‘with
perhaps a touch
of
panic’ urged Jowitt to go to
see
the Archbishop of Westminster
since the Apostolic Delegate to England was
ill.
All this led to the question then
(what about now?) asked of every judicial appointee: ‘Is there anything about your
private life you think you ought to tell me?’ Lord Chancellor Simonds in 1953
thought it was ‘a matter of principle that
a
journey through the Divorce Court
should not
ipsofacto
be a bar to recommendation for silk.’ Relief all round.
What of Mr Justice Charles who, according to Birkett, ‘smokes in the [assize]
procession, belched from beer
in
his assize sermon’ and was ‘a domineering,
vulgar, unjust and decrepit old man’? And Mr Justice Lloyd-Jacob, who wrote to
The Times
against the use of the hydrogen bomb? This was deemed
a
matter of
political controversy and the judge had to crawl in his response to Simonds (‘to
know that
I
have caused you worry and embarrassment
is
a wretched burden’).
Coldstream minuted, on the publication of
Freedom Under the
Law,
that
‘Denning J is wholly ignorant of the mechanism of administrative government.’
Before the Beeching Committee (which led to the Courts Act 1971)’ Denning said
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