That Man Griffith
- Lord Denning: A Biography by Edmund Heward
Weidenfeld, 243 pp, £15.00, September 1990, ISBN 0 297 81138 X
I should declare an interest. Anthony Sampson in The Changing Anatomy of Britain quotes Lord Denning dismissing attacks on a class-based judiciary: ‘The youngsters believe that we come from a narrow background – it’s all nonsense – they get it from that man Griffith.’
Lord Reid was a distinguished top judge. In 1972 he wrote: ‘Those with a taste for fairytales seem to have thought that in some Aladdin’s cave there is hidden the Common Law in all its splendour and that on a judge’s appointment there descends on him knowledge of the magic words Open Sesame. Bad decisions are given when the judge has muddled the password and the wrong door opens. But we do not believe in fairy-tales any more.’
The English system of law-making is a curious show in which judges operate at three levels. At Level One they legislate out of the whole cloth, making new rules of Common Law. This they do by the inductive method whereby principles emerge from the accumulation of cases in
A land of settled government,
A land of just and old renown,
Where Freedom slowly broadens down
From precedent to precedent
– or so Alfred, Lord T would have us believe. There is less of this whole-cloth activity about than there was, but it still goes on, for example, in refining the rules about liability for negligent behaviour in determining whether you can sue a local authority which failed properly to inspect the construction of your house which is showing signs of falling down.
Acts of Parliament or statutes are a much more important source of law and this brings us to Level Two of judicial operation. Statutes contain rules which are by nature general and give rise to many problems of interpretation when they are applied to particular facts. For example, a local authority refused to place on its housing waiting list a Polish national who had completed three operational tours in RAF Bomber Command and then continued to live in London for 14 years, because he was not a British subject. Did this requirement contravene a Race Relations Act which made unlawful the special treatment of a person on the ground of his ‘national origins’? No, said the Law Lords, because ‘national origins’ were not the same as ‘nationality’, which was what the local authority was concerned with. See what I mean? Human beings are clever little monkeys, always thinking of ways to evade rules (especially on tax), and judges have to decide whether they have succeeded in doing so. Statutory interpretation is a large part of judicial law-making.
On Level Three, judges review the actions of ministers and other public authorities and may invalidate those actions on the ground that they are not authorised by statute or are procedurally defective. Such review may control the way ministerial powers are used and may disallow their exercise if the minister is considered to have acted irrationally or for purposes not intended by the statute, to have taken into account irrelevant matters or not to have taken into account relevant matters. The criteria applied by the courts are their own and vary considerably in application from case to case. It is because of the flexibility of these judicial criteria that questions may properly be raised about the politics of the judiciary.
Time and again, judges are obliged to decide where the public interest lies and that, of course, is a highly political question. So we read, with varying degrees of concern, of decisions like those which struck down the GLC’s Fares Fair policy, or upheld the Spycatcher injunctions, or dismissed with contempt the appeal of the Birmingham Six, or supported Poll Tax capping or refused to protect journalists’ sources. What I am emphasising here is not the political wrongness (as it seems to me) of such decisions but the width of the discretionary powers enjoyed by judges. They have a great deal of space in which to move and they hand down decisions over a great range of matters which affect us all.
At different times and between different courts there have been, and are, different judicial approaches. And where three or five judges sit in the Court of Appeal or the House of Lords, one or more may disagree with his brethren (or in the unique event that Lord Justice Butler-Sloss is sitting, with his sister). But judges are not elected politicians and those in the High Court and above (about whom I am writing) cannot be removed from office. In the absence of this sanction, which to an extent keeps ministers within bounds, it is obvious that judges, though they can operate only in the cases that come before them, are politically unaccountable and irresponsible. The restraints within which they work are personal and professional.