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.
The personal restraint is that most judges most of the time seek to exclude from their minds the prejudices from which they, like the rest of us, suffer – what Justice Holmes called their inarticulate major premises. They do not always succeed in doing so and sometimes they do not seem to be trying very hard. But the restraint is there. The professional restraint is that they inherit from their long life as practising barristers a knowledge of the development of English law, its traditions and its fashions. These may be seen as admirable or pernicious, the envy of the world or something of a laughing stock, or a mixture of all these, but they form the whole surround within which judges live. Also judges, like other professionals, wish to be thought well of by their peers and to provide the material for favourable obituaries.
The making of laws, the laying down of general rules and principles, albeit in the shape of specific decisions, is not the same as seeking justice in individual cases. The judge who follows his own instincts, without thought of the effects in consequential cases, is a dangerous maverick, his self-indulgence promoting confusion.
Lord Denning was a judge in the High Court from 1944 to 1948, in the Court of Appeal from 1948 to 1957, in the House of Lords from 1957 to 1962, and returned to preside over the Court of Appeal as Master of the Rolls from 1962 to 1982. Thirty-eight years is a long tenure and no one is likely to exceed it, now that retirement is fixed at 75 years of age. And twenty years is a long time to preside over the Court of Appeal in a job with the greatest judicial influence over the development of the law. In his earlier days, Denning came into conflict with Lord Chancellor Simonds. In 1951 Denning said of the function of the courts when interpreting a statute: ‘We do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.’ To Simonds this was ‘a naked usurpation of the legislative functions under the guise of interpretation’ (Magor and St Mellors). By 1978, Denning was saying: ‘whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the judges can and should use their good sense to remedy it – by reading in words, if necessary, so as to do what Parliament would have done, had they had the situation in mind.’ ‘The choice,’ Denning said, ‘is a matter of policy for the law: which gives the more sensible result? It is not a semantic or linguistic exercise.’
In his preface to the biography under review, Edmund Heward says that Lord Denning was ‘bold and innovative, wished to restate the law in accordance with established principles and hated the restrictions imposed by precedent’. That is as fine a statement of contradictions as you are likely to meet in a summary of one man’s endeavour. To be innovative and yet to restate, to restate and yet to rely on established principles, to rely on established principles and yet to find precedents restrictive, all this adds up to doing what you like and finding a label for every act, a subtitle for every position, a general proposition for every idiosyncrasy.
Denning’s gung-ho approach to adjudication undeniably had some good results. In domestic and personal situations where the rules had not changed with the times he handed down reforming decisions when other judges would have merely regretted their inability to do justice. His decisions in favour of claimants for war pensions cut through bureaucratic limitations and earned him the deep gratitude of the British Legion. His decisions on the rights of deserted wives were similarly enlarging, as were his contributions to the law relating to contract and tort, equity and trusts, and family matters. Of the last it has been said that ‘his populist sense of justice may lead to some outrageous decisions and to some inconsistency’, but the good outweighs the injustices. In these areas of the law that may be a valid general assessment. The whole of his contribution was extensively surveyed in Lord Denning: The Judge and the Law, edited by Jowell and McAuslan in 1984.
It is when we turn to public law cases that the dangers of the ‘justice’ approach become evident and Denning often declines into a parody of the conventional establishment judge. Here we are concerned with the macroscopic end of the business: civil liberties, the powers of the state and of the Police, race relations and immigration control. Not that Denning always allowed ministers a free hand. But justice takes on a different meaning when the required judgment is ultimately political as much as legal. Criticism of government policy and administration as unjust is readily rejected by government supporters. What is just or unjust in politics is predicated on different criteria from those which determine what is just and unjust in personal relations.
Denning acquired a reputation as a protector of individual rights but the record is, to put it mildly, ambiguous. As usual, it depends whose rights you want to protect. First, he led the judicial campaign against the Commission for Racial Equality which absorbed the Race Relations Board and the Community Relations Commission. The statutory duties of the CRE are to work towards the elimination of discrimination – to promote equality of opportunity and good relations between persons of different races, and to keep under review the working of the Race Relations Act. The CRE may conduct formal inquiries and is required to enable those under investigation to make representations and to appeal to an industrial tribunal or county court. Three decisions (Amari Plastics, Hillingdon and Prestige) of the Court of Appeal and the House of Lords in 1982 and 1984 greatly impeded the operations of the CRE. Denning was particularly horrified at the ‘immense powers’ given to the CRE. It could ‘interrogate employers up to the hilt and compel disclosure of documents on a massive scale ... issue a questionnaire ... demand full particulars ... compel discovery of documents ... demand to see documents made in confidence’. He concluded: ‘You might think that we were back in the days of the Inquisition ... You might think we were back in the days of the General Warrants.’ In another case (Mandla) Denning castigated the CRE for supporting a Sikh boy who had been required by a private school to have his hair cut, saying that the CRE ‘pursued the headmaster relentlessly’. But he was overruled by the Law Lords who called the attack ‘entirely unjustified’. As the CRE said in 1983, ‘it may be that judges will never be able to accept the fact that Parliament has entrusted the CRE with sweeping investigative powers to work towards the eradication of a great social evil being carried out covertly.’ Certainly Denning did not accept it. It is doubtful whether he had much sympathy with these aims.
Similarly, on immigration and deportation, Denning’s nose for justice led him in various and variable directions. In 1967, Mauritian citizens of the UK and Colonies were issued with UK passports apparently giving them the right to come to the UK without restriction. Denning’s fear that this would also entitle those from ‘Hong Kong, Fiji, Gibraltar and St Helena’ to enter led him to interpret the legislation perversely (Shadeo Bhurosah) and he applied this policy of excluding non-patrials in other cases by reading words into the statute (Abdul Manan, Azam and Margueritte). He interpreted immigration rules strictly – for example in Alexander, which the Law Lords overruled, and Marek. This last was a particularly harsh decision denying an infant admission because the mother was abroad on a business visit at the time of application. She died on the visit, so the application could not be renewed.
The rules of natural justice were ignored when, with Denning’s approval, US students who were Scientologists were deported without a hearing. ‘I think,’ Denning said, ‘the minister can exercise his power for any purpose which he considers to be for the public good or to be in the interests of the people of this country’ (Schmidt). In Ex parte Sohlen, an infamous decision, a citizen of the USA, who was being flown from Israel in the custody of a US marshal, inflicted wounds on himself. The plane landed in London and Soblen was taken to hospital. He applied for habeas corpus. This was denied on the ground that he had been refused leave to land, and, ‘in order to do what the United States wanted’, as Denning said, he was served with a deportation notice by the Home Secretary. Shortly before he was due to be flown out of the UK en route for New York he took an overdose and died. With this may be compared the case of Mark Hosenball, the American journalist whom the Home Office decided should be deported as a security risk. Hosenball challenged the decision on the ground that there had been a breach of the rules of natural justice, in that he had been given no details and so could not seek to defend himself. Denning said bluntly that a conflict between the interests of national security and the freedom of the individual was ‘not for a court of law’, adding for good measure that ministers had ‘never interfered with the liberty or the freedom of movement of any individual except when it was absolutely necessary for the safety of the state’. This is not a view that is universally shared. In The Due Process of Law Denning wrote:
In recent times England has been invaded – not by enemies – nor by friends – but by those who seek England as a haven. In England there is social security – a national health service and guaranteed housing – all to be had for the asking without payment and without working for it. Once here, each seeks to bring his relatives to join him. So they multiply exceedingly.
Denning’s attitude to the press shows his quest for justice at its most idiosyncratic. When the British Steel Corporation sought an order of the court to require Granada TV to disclose the source of the information used in a programme critical of BSC, Denning began by saying that ‘in general’ sources should be protected. But on second thoughts, he has told us, he decided that Granada had not ‘behaved with due respect’ or ‘with a due sense of responsibility’. So he supported the making of the order. Two years later, in What Next in the Law, he recanted and said he had made a mistake. The path of the seat-of-the-pants moralist is naturally bumpy. In another of his notorious decisions, he supported the expulsion of a student from a teacher training college despite the most flagrant breaches of natural justice (Ward v Bradford); and on this occasion too, he admitted that he might have been wrong.
When Harriet Harman of the NCCL allowed a reporter to see documents which had been read out in open court, Denning held that she was guilty of contempt of court. Subsequently the European Commission of Human Rights forced the Government into a retraction. Denning said that he regarded the use made by the journalist of the documents to be ‘highly detrimental to the good ordering’ of society, with the consequence that ‘the machinery of government will be hampered or even thwarted’. Time and again throughout his career, Denning has upheld the executive arm of government against challenges to its authority. This, no doubt, is the natural stance of the judiciary, which is more concerned with the preservation of ‘law and order’ than with individual rights. Once again, ‘justice’ is a slippery ground on which to make definitive decisions.
A third area of public law in which Denning became involved was that relating to trade unions. The material here is extensive and I will confine myself to one group of cases. For much of the 19th century, combinations of work people were regarded by the law as illegal. Strike action ceased to be criminal only in 1875, when statute protected those acting ‘in contemplation or furtherance of a trade dispute’. This was restated by the Labour Government of the mid-1970s.
In 1978 a union blacked a ship in an attempt to force its owners to pay union wages, but the Court of Appeal held that this ‘extraneous’ action was not part of a trade dispute, and Denning said that the statutory words must be limited and ‘the court can look at the motive for which the action was taken’. The House of Lords disagreed (Star Sea). Undeterred, the next year, in a pay dispute in the newspaper business, Denning and the Court of Appeal held that a strike called by the NUJ was not in furtherance of a trade dispute, whatever the intentions of the union might have been. Again the Law Lords overruled (McShane). Six weeks later, the steel workers’ union was in dispute with the British Steel Corporation and decided to extend their strike to the private sector of the industry. Again Denning denied that this was a trade dispute and again the Law Lords reversed the decision (Duport Steels). ‘My basic criticism of all three judgments in the Court of Appeal is that in their desire to do justice the court failed to do justice according to law,’ Lord Scarman said. ‘Legal systems differ in the width of the discretionary power granted to judges but in developed societies limits are invariably set, beyond which the judges may not go. Justice in such societies is not left to the unguided, even if experienced, sage sitting under the spreading oak tree.’ The matter of the disagreement lay at the heart of party politics and the Law Lords were trying to ensure that the judiciary did not become too obviously involved in the run-up to the General Election of 1979. Denning had no hesitation in taking sides and in describing trade unions as ‘the greatest threat to the rule of law’.
The author of this biography does not claim to have provided more than a personal sketch. He acknowledges his ‘greatest debt’ to Lord and Lady Denning for their patience and kindness in helping him, and the ‘sketch’ is on the whole adulatory. Heward does, however, put the other side, saying of Denning: ‘A serious criticism of him is that he lacked intellectual honesty; this certainly took second place to justice.’ He quotes Lady Denning: ‘Once he did show me a judgment he was going to give. I told him that I thought he was coming out the wrong way. He said “Oh, do you?” and wrote the judgment the other way.’
The events that led to Denning’s retirement are set out in a chapter headed ‘Disaster’. Counsel for the accused in the trial after the St Paul’s riot in Bristol made 35 challenges to the jurors’ panel. This was done, said Denning in What Next in the Law in 1982, ‘so as to secure as many coloured people on the jury as possible – by objecting to whites. The evidence against two of the accused was so strong that you would think they would be found guilty. But there was disagreement.’ Two of the black jurors threatened to sue Denning. The book was withdrawn, Denning apologised publicly and privately, and announced his retirement, which had previously been called for in 1980 after his infamous remarks in dismissing an application to appeal on the part of the Birmingham Six, on the ground that to allow it would mean convicting the Police of perjury and violence.
Earlier this year, Denning joined the then Secretary of State for Northern Ireland in publicly opposing the right to silence during the trial of the Winchester Three, with the result that their conviction was quashed. This was followed by the Spectator interview, with the suggestion that the Guildford Four might be guilty and the description of Leon Brittan as ‘a German Jew telling us what to do with our English law’. In 1955 Lord Chancellor Kilmuir said that judges should be kept insulated from the controversies of the day: ‘So long as the judge keeps silent, his reputation for wisdom and impartiality remains unassailable.’
Heward records that American students embroidered ‘Root for Denning’ on their T-shirts. I am no more impartial than Lord Denning, but my proudest possession is a T-shirt given me by a student in Toronto with ‘That man Griffith’ embroidered on it. So there.