Books

Two legal big hitters consider the appropriate distribution of governmental power in Britain

22 September 2018

9:00 AM

22 September 2018

9:00 AM

Sir Stephen Sedley read English at Cambridge and Lord Dyson Classics at Oxford. Both switched to law and achieved high judicial office, the former a senior Lord Justice of Appeal, the latter as Master of the Rolls. Both were effective advocates as well as admired judges (not always the case). Both clearly enjoyed these two distinct stages in their legal careers (again not always the case).

These volumes are not judicial memoirs (though each contain fragments of autobiography), but compendia of the author’s views on a variety of legal issues, notably the appropriate distribution of governmental power in British society. The recently retired president of the Supreme Court wrote: ‘Yesterday’s judges were children of the conventional and respectful 1940s and 1950s, whereas today’s judges are children of the questioning and sceptical 1960s and 1970s.’ By this test both authors are in harmony with their times.

Both emphatically reject the notion that judges are out of touch. Both emerge too as firm defenders of the judicial faith against critics who accuse them of trespassing on pastures properly reserved for politicians. In giving full effect to constitutional and human rights sourced in the laws of the European Union and European Convention on Human Rights, they see themselves not as enemies of the people but as friends of the people.


They note, correctly, that it was Parliament which incorporated those laws into the national legal system. But this defence is partial, not complete. Judges are not automata; they have and make choices. Dyson crosses swords with Lord Hoffman over the role of the Strasbourg Court which the former regards as providing benign guidance, the latter as guilty of overreach. Sedley takes aim at Lord Sumption, another aficionado of judicial self-restraint, in the public law sphere.

Because of these differences in judicial approach, the law remains intriguingly uncertain at top as well as bottom. Most strikingly Dyson, in a chapter entitled ‘The shifting sands of statutory interpretation’, unashamedly evinces his own dissent from a decision of the Supreme Court (to which he was not a party) where the Justices by a bare majority allowed Ukip to retain an unlawful donation, without which Nigel Farage might have been exiled for ever to the political fringe.

The lectures and essays from which these anthologies are compiled were for the most part delivered or written while the author was in post. Neither author has breached the obligation of, in Sedley’s words, ‘steering clear of party political issues’, though Dyson’s concerns about the problem of litigation funding, the cost and complexity of litigation and excessive court fees may cause some wincing in Westminster and Whitehall as well as in the Temple. Yet while transparency is intrinsically preferable to opacity. and Counsel like to have an inkling of the target at which they must address their submissions in the hope (not always vain) that judges are persuadable creatures, there is a serious question whether it is prudent for serving judges to articulate with such clarity their philosophies or whether it is preferable for them to maintain, as they used to, a monastic silence out of court.

For the lawyer the books, especially Dyson’s, provide a swift refresher course in recent case law; for the layman an insight into judicial thinking. Both acknowledge the advocate’s contribution to the rule of law as well as the contribution made by academics to the law’s development. The perception, prevalent when each started his legal career, that the only quotable academic is a dead academic is obsolete. Indeed Sedley considers that academics, even without qualification or experience as barrister or solicitor, should be eligible for appointment to the Supreme Court.

Appointed in the early 1990s, and beneficiaries of the old tap on the shoulder by the Lord Chancellor, they tactfully refrain from commenting on the looming crisis in the judiciary which results from two factors: first the increasing difficulty in persuading QCs of sufficient calibre to chance applications to the Judicial Appointments Commission; second the early retirement, before they were statutorily senile, of Appellate judges seduced into the lucrative pastures of commercial arbitration. Neither of the authors succumbed to that temptation. But how many of their like and quality shall we see again?

At a time when concerns about the judiciary focus on diversity as well as merit, the two judges’ ancestry was as unusual as their education was typical. Lord Dyson is the son of a Lithuanian father and a Bulgarian mother; all four of Sir Stephen Sedley’s grandparents were immigrants from Poland. There is a book waiting to be written on the contribution that the offspring of Jewish refugees have made to English law.

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