Stephen Sedley

It used to be said in Whitehall that the first job of a royal commission was to lay down a decent cellar. Royal commissions were grand affairs, the Rolls Royces of public deliberation, with a pedigree almost a thousand years long. Some four hundred of them were set up during the 19th century, and almost a hundred and forty in the first three-quarters of this century. But from 1977 until the release of the Birmingham Six in 1991, not one royal commission was appointed. It had become the proclaimed task of government to govern, not to appoint bodies to agonise about what should be done. In a lecture I gave in 1988 I found myself speculating that this magnificent beast might be facing extinction. It is, after all, only the noblest species of quite a large genus which includes Parliamentary select and standing committees (these having the considerable advantage that the government of the day can exercise some control over them), inquiries set up by resolution of both Houses of Parliament (rare creatures, of which the Lynskey Tribunal and the Aberfan Inquiry are examples) and inquiries under specific statutory powers (policing, childcare, medical services). In addition any public body has the inherent power to appoint anyone to inquire into anything on its behalf (prominently at the moment, the Scott Inquiry into the Matrix-Churchill affair). Even the coroner’s inquest is a form of public inquiry. Together, these inquiries form a considerable tranche of constitutional practice, more catholic and deliberative than litigation, less partisan and more judicial than political debate; and because nobody has a right to a public inquiry, they are a flexible instrument of government which can be used to alleviate rather than increase embarrassment. Accordingly, at moments of major concern they have an important constitutional role in reassuring the world that the state is examining the entrails and that all will shortly be well.

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.

The absurdity of ex-judge James Pickles is not that, the son of a mayor of Halifax and himself an Oxford graduate, he rails endlessly against the domination of the Bench by the Oxbridge upper middle class. There’s nothing wrong with being a traitor to one’s class. As the left-wing QC D. N. Pritt told the right-wing Labour leader Ernest Bevin, it was the only thing the two of them had in common. No, what’s odd about Pickles is that, as his book repeatedly reveals, he is an unimaginative authoritarian who has somehow managed to break all the rules in his private war against unimaginative authoritarians.