When judges sleep

Stephen Sedley

• In the Highest Degree Odious: Detention without Trial in Wartime Britain by A.W.B. Simpson
  Oxford, 453 pp, £35.00, December 1992, ISBN 0 19 825755 4

Every so often, poking around in the law’s attic for something you need, you come across a piece of legislation or a report of a case which still has enough grass and twigs sticking to it to hint at the life behind it. Researching a case not long ago about public rights of access to Fylingdales Moor, it dawned on me that behind the opaque language of the successive Defence Acts and Military Lands Acts which from the 1840s onwards had handed huge tracts of land to the military for practice and manoeuvres, lay a widespread struggle, in and outside Parliament, to keep the commons open. It resulted in the inclusion of a proviso forbidding the predecessors of the Ministry of Defence to close off any rights of common, and it gave the Greenham women the final satisfaction of striking down the bye-laws under which they had repeatedly been prosecuted for entering land in breach of bye-laws which, it turned out, had been illegally made. It also gave the new Lord Chief Justice an example, for his Dimbleby Lecture, of the law’s ability to play a straight bat.