The Judge as ‘Political Advisor’: Behind the Scenes at the National Industrial Relations Court
| Author | Maureen Spencer,John Spencer |
| Published date | 01 June 2006 |
| Date | 01 June 2006 |
| DOI | http://doi.org/10.1111/j.1467-6478.2006.00355.x |
JOURNAL OF LAW AND SOCIETY
VOLUME 33, NUMBER 2, JUNE 2006
ISSN: 0263-323X, pp. 199±220
The Judge as `Political Advisor':
Behind the Scenes at the National Industrial Relations Court
Maureen Spencer* and John Spencer*
The recent opening under the 30-year rule of official papers con-
cerning the Industrial Relations Act 1971 makes it possible to
reappraise the conventional view of this short-lived statute and also
more general implications of the process of policy making at a time of
acute political crisis. The papers shed new light on the relationship
between the government and the judiciary, in particular the President
of the National Industrial Relations Court, Sir John Donaldson. They
provide empirical evidence of how the judicial and political arms of
government dealt with social and industrial upheavals and they prompt
reflections on the nature of the separation of powers in the United
Kingdom's constitutional arrangements. It is argued that, in examining
the nature and extent of judicial independence, constitutional law
scholars have hitherto concentrated on executive influence on the
judiciary and tended to ignore the extent to which judges may secretly
influence politicians.
INTRODUCTION
This study, examining the specific case of the Industrial Relations Act 1971,
contributes empirical research in the newly opened British government
archives to an understanding of labour and constitutional law. The reper-
cussions of the events in the early 1970s are considered in correspondence
between the President of the National Industrial Relations Court (NIRC), Sir
199
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9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*The Centre for Legal Research, Middlesex University Business School, The
Burroughs, Hendon, London NW4 4BT, England
maureen4@mdx.ac.uk john.spencer@mcrl.poptel.org.uk
The authors are grateful for the comments of Lord Wedderburn, Professors J.A.G.
Griffith, Brenda Barrett, and David Lewis, and the anonymous reviewers of this journal
on earlier drafts of the article. Crown Copyright in the materials cited from the National
Archives is acknowledged.
John Donaldson,
1
and members of the Conservative Cabinet. The papers
throw new light on the operation of the doctrine of the separation of powers
in the Edward Heath government's pioneering but ultimately unsuccessful
attempt to impose comprehensive legal restraints on trade union action.
2
An
additional primary source for this study is the correspondence between
Professor J.A.G. Griffith and Lord Donaldson, written in 2001.
3
Lord
Donaldson's reflections there on the 1971 legislation illuminate further the
relationship between the judiciary and the government. Shortly before he
died, Lord Donaldson also generously made written comments on the
evidence in the archives.
4
For the most part, scholars of twentieth-century constitutional and labour
law history have not drawn on archival sources in analysing the workings of
the constitution.
5
One exception is Robert Stevens who has used the internal
papers of the Lord Chancellor's Department to highlight the pivotal role of
civil service officials. Stevens fills out the concept of the independence of
the judiciary through a detailed examination of these archives.
6
It is argued
here, however, that by drawing on a broader range of archival sources,
particularly the Prime Minister's Private Office papers, aspects of a more
complex relationship between the judiciary, the executive, and the legislature
can be illustrated.
Academic studies of the role of the judiciary have primarily concentrated
on their court judgments or their role in chairing public inquiries. Their work
is often examined in so far as court decisions may reflect political pressure
and even party considerations.
7
Dawn Oliver, examining public suspicions of
political interference with the judicial system during the 1984±1985 miners'
strike, wrote: `In the context of the relationship between the Government and
the courts, influence could take the form of directly applied pressure, but
200
1Aformer Conservative student activist and local councillor, Sir John Donaldson had
assisted in drafting the Act (Times,2September 2005). He was one of the authors of
the pamphlet A Giant's Strength (1958) which foreshadowed many of the provisions
of the Act (Mirror,2September 2005). He was appointed to the High Court bench in
1966, became president of the NIRC in 1971, a Lord Justice of Appeal in 1979, and
Master of the Rolls in 1982. He became a Law Lord as Lord Donaldson of Lymington
in 1988 and retired in 1992.
2 The archival materials were the subject of a one-day seminar at Middlesex University
in November 2004 where the authors presented a draft paper on their preliminary
findings.
3 The authors are most grateful to Professor Griffith for allowing them to draw on this
correspondence.
4 Cited below as Lord Donaldson to Maureen Spencer, January 2005. Original in the
hands of the authors.
5 See, however, D. Brodie, AHistory of British Labour Law 1867±1945 (2003).
6R.Stevens, The Independence of the Judiciary. The View from the Lord Chancellor's
Office (1993).
7 See, for example, N.W. Barber, `Prelude to the Separation of Powers' (2001) 60
Cambridge Law J. 59±88.
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