There is a fairly obvious sense in which the law conditions or even determines, rather than simply reflects, a society’s shared sense of right and wrong (or – which is not the same thing – acceptable and unacceptable). The clearest instance in this generation has been the equality legislation, which has not simply placed on the statute book a prohibition against discrimination on grounds of race or gender, but has generated a fundamental change in the common sense of what kinds of conduct and language towards one’s fellow citizens are acceptable or right. This is statute law at its best – picking up and consolidating an incipient and fragile change of social mood, giving it legitimacy and backing it with legal redress. We have certainly not eliminated racial and sexual discrimination, but few would dispute that things would be markedly worse without the legislation.
In other areas, however, legislatures have played a passive or even a negative role, and it has been left to the courts of law to fill the voids. Perhaps the greatest and the most shameful of such voids was the failure of Parliament over many decades to respond to a widespread sense of moral outrage by abolishing slavery. It was left to the courts, unevenly and in response only to such private law cases as came before them, to do the job that Parliament after Parliament had shirked. Students still learn that in a single magnificent decision – portrayed in paintings and engravings of the grateful slave Somersett having the shackles struck from him as his ermine-clad deliverer pronounces judgment from on high – Lord Mansfield proclaimed: ‘The air of England is too pure for a slave to breathe. Let the black go free.’ The truth, as usual, is less dramatic but more instructive.
English law, which recognised and enforced slavery until well after the Norman Conquest, no longer did by the 16th century, when a lucrative slave trade developed between West Africa and the American and Caribbean colonies. The courts of England, however, gave their sanction to slave trading during the 17th century, in part by accepting its legitimacy within the law of nations and therefore the law merchant, but more directly by denying the protection of the law to infidels. This worked well enough, but only so long as slaves were not baptised and only in relation to contracts for their sale made overseas. In the first decade of the 18th century, Chief Justice Holt refused to accept that slavery could be enforced in domestic law – ‘as soon as a negro comes into England he becomes free,’ Holt said – a view which was both rejected and adopted in the course of the century. In 1771, reflecting the growing public sentiment against the slave trade, the reformer Granville Sharp prosecuted a man named Stapylton who had taken his runaway slave, Thomas Lewis, forcibly on board ship. The trial judge, Lord Mansfield, tried to evade the moral issue by directing the jury that the case depended simply on whether Lewis was Stapylton’s property. The jury returned a verdict that Lewis was not, but Mansfield refused to give it effect. Within a year Granville Sharp had returned to Lord Mansfield’s court with the case of James Somersett, another runaway slave who had been taken by force to a vessel moored in the Thames and bound for Jamaica. Mansfield this time grasped the nettle: ‘The state of slavery,’ he held, ‘is of such a nature that it is incapable of being introduced on any reason, moral or political, but only by positive law ... Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the laws of England; and therefore the black must be discharged.’ Although the decision had been long anticipated by that of Holt, history – encouraged by a strong abolitionist lobby, which found it useful to elevate Mansfield’s reluctant judgment into a new turning-point – has given Mansfield the credit he desired; and it has generously forgotten that Mansfield went on in a subsequent decision to enforce work without pay on a slave brought here from the colonies.
Before the end of the Napoleonic wars, Parliament had prohibited trading in slaves, but the status of existing slaves in the colonies remained in contention. It was the avowed abolitionist Lord Stowell, in the case of the Slave Grace in 1827, who, by refusing to hold that slavery in the colonies was now contrary to public policy, pointed up the insularity of the decision in the Somersett case and insisted that it was for Parliament to expiate the guilt which still rested on Britain for the trade in slaves throughout its colonies. In the course of his sarcastic commentary on Mansfield’s jurisprudence, Stowell summarised it as being that ‘the air of our island is too pure for slavery to breathe in.’ Contrary to legend, therefore, the phrase is not Mansfield’s at all. But neither is it Stowell’s. It appears to originate in, of all places, Star Chamber, where in 1569 ‘one Cartwright brought a slave from Russia and would scourge him cruelly, for which he was questioned, and it was resolved, that England was to pure an ayr for slaves to breath in.’ In 1833, six years after Stowell’s judgment, Parliament abolished slavery in Britain’s colonies.
The history of slavery and the common law is not therefore the story of unflinching moral rectitude regularly associated with the cases of the slaves James Somersett and Grace. The common law’s true claim to the moral high ground lies two generations before the waverings of first Mansfield and then Stowell, when Sir John Holt said all that the law could say about personal freedom, qualified in its territorial reach but handsomely unqualified by race or religion, until such time as Parliament was prepared to follow suit in the colonies.
The courts cannot claim a consistent history of either carrying out Parliament’s progressive measures or, where Parliament falters, doing the right thing unprompted. English judges rejected the repeated opportunities which came before them during the worst years of the game laws to outlaw spring guns and mantraps by penalising the landowners or the gamekeepers who set them – in contrast to the Scottish judiciary, who in 1827 upheld the conviction of the Earl of Home’s gamekeeper for murder by the setting of a spring gun, refusing to look at a contrary opinion of the English Attorney-General. Indeed, on more than one occasion in the past, the judges went to the point of perversity to frustrate Parliament’s intentions. One of the episodes now largely forgotten by legal history is the line of so-called ‘persons cases’ by which the courts of this country consistently obstructed the extension to women of university education, entry into the professions, the electoral franchise and access to elected office.
In 1869, Sophia Jex-Blake and six other women persuaded Edinburgh University to change its regulations and to admit women to separate lectures in medicine. The prospect that they would in due course graduate and enter the medical profession, into which so far only Elizabeth Blackwell (who had qualified in America) and Elizabeth Garrett (who had slipped in through a loophole) had made their way, led to furious academic resistance. The University reneged on its own regulations, and when the women brought proceedings in the Court of Session to establish their entitlement to attend classes, be examined and graduate, the University contended that its own regulations were ultra vires. A bare majority of the 12 judges who heard the case on appeal agreed with it. The rationale of the decision was that the historic purpose of the University was to educate young men, and that the University itself could not by a simple rule-change make it otherwise.
It is remarkable that Jex-Blake and the others came within two judicial votes of victory, but it was Parliament which then took up the running, both responding to and augmenting the pressure for women’s emancipation. The second great Reform Act of 1867 had extended the Parliamentary franchise to all householders. The word used in the key section of the Act was ‘man’; John Stuart Mill’s proposal to amend it to ‘person’ was rejected on a vote. When it was pointed out on the floor of the House that Parliament’s own Interpretation Act deemed all words importing the masculine gender to include females unless the contrary was expressly provided, Disraeli, speaking for the Government, replied darkly that it would be a matter for ‘the gentlemen of the long robe’ – the judges – but that he doubted whether they would agree that it applied to the Reform Act. He was right. When local revising officers struck out the names of the thousands of female householders who put their names on the electoral register, a number of them sought to exercise the right of any ‘person aggrieved’ by such a decision to challenge it in court. In one group of cases the court held that the women were not persons and so could not be persons aggrieved. In the main case, Chorlton v. Lings, the High Court held that the presumption of the Interpretation Act that any reference to ‘man’ in the Reform Act should be taken to include ‘woman’ was not sufficient to change the historical fact that at common law women had never been allowed to vote. Nobody needed to refer to Disraeli’s prognostication.
Two years after the Second Reform Act, however, Parliament unambiguously gave the municipal vote to women. The legislation also said simply that any fit person of full age might be elected, and that the qualifications for being a councillor were to be the same as those for being a voter. Lady Sandhurst stood for a seat on the London County Council in 1889 and won by a clear majority. Her opponent sought a court order disqualifying her on the ground that a woman, not being a person, could not be a fit person of full age. One of the judges, Sir James Fitz-james Stephen, applied the same reasoning that had been used in relation to the franchise: because women had never been able to hold public office, clearer language than this would be needed to change things. (It was the same judge who not long afterwards and without a trace of irony remarked that ‘it is not enough to attain a degree of precision which a person reading in good faith can understand; but it is necessary to attain if possible a degree of precision which a person reading in bad faith cannot misunderstand. It is all the better if he cannot pretend to misunderstand it.’) On appeal, Lord Chief Justice Coleridge upheld the decision on the ground that by including women expressly in the right to vote, Parliament had implicitly excluded them from the right to stand.
Lady Sandhurst’s electoral victory was shortly followed by that of Miss Cobden, who delayed taking her seat until the expiry of a period of time which put it beyond legal challenge. But she was then prosecuted under a statute that made it an offence for ‘any person’ to sit as a councillor without being qualified. Her argument might have been thought one of the stronger ones to come before a court: having been elected and taken her seat without challenge, she could not be said to be unqualified; if she was unqualified it was because she was a woman and so, like Lady Sandhurst, not a person. She could therefore not be a person sitting as a councillor when unqualified, especially as the prohibition itself used the word ‘he’. No, said the Master of the Rolls, this was a clear case for the application of the Inter-pretation Act: a woman was a person for the purpose of committing the offence of taking up an office to which, because she was not a person, she had no right to be elected.
Having painted themselves into this corner, by the turn of the century the judges either could not or did not wish to get out of it. In Scotland the word ‘person’ in the Law Agents Act 1873 was held not to include women. The decision was based on immemorial usage, notwithstanding that there was a record of Lady Crawford having appeared before the High Court in Edinburgh as an advocate as long ago as 1563, and notwithstanding the presumption of gender-inclusiveness in the Interpretation Act 1889. In England the judges, as visitors of Gray’s Inn, upheld the benchers’ refusal to call Bertha Cave to the Bar on the ground that there was no precedent for doing so. In Scotland the women who, in the wake of Sophia Jex-Blake, had in 1889 secured admission to Scottish universities by statute, sought to exercise the right of ‘every person’ registered as a graduate to vote in the University Parliamentary constituency. The Court of Session held in 1909 that, in conformity with the unwritten constitutional law which by supposed custom confined the franchise to men, the word ‘person’ excluded women; and that being a woman was a disqualifying legal disability. On appeal to the House of Lords, Lord Loreburn dug a still deeper pit for the courts by holding the legal disability of women to be so self-evident that ‘it is incomprehensible ... that anyone acquainted with our laws or the methods by which they are ascertained can think, if indeed anyone does think, there is room for argument on such a point.’
There followed in 1913 the judicial exclusion of women from the category of ‘persons’ entitled by the Solicitors’ Act 1843 to take articles. Because of the legal disabilities imposed by the law on married women, the applicant’s counsel conceded that only unmarried women could claim equality with men. The price his client paid for the concession was the remark of Lord Justice Phillimore that it would be a serious inconvenience if an unmarried woman solicitor got married in the middle of conducting a case, simultaneously losing the capacity to contract and to practise. Then in 1922, Lord Birkenhead, determined to overset the favourable advice of a special committee of the House of Lords which had included three judges, set up a fresh committee and secured a decision that Viscountess Rhondda, a hereditary peeress, was disqualified by her sex from taking her seat in the House. It was only in 1929 – following a generation of suffragist agitation and a full decade after Parliament had bypassed the judges by legislating in words of one syllable to give women the vote in Parliamentary elections and to revoke all legal impediments on women in public law – that the Privy Council, on an appeal from Canada concerned with the election of the country’s first female senator, managed to get the common law off the hook on which its domestic predecessors had consciously impaled it, by the simple proposition that the word ‘person’ on the face of it includes both sexes and that a history of customary discrimination did not furnish a very useful gloss on that obvious meaning. But it was more than forty years after Viscountess Rhondda’s case before a woman took her seat in the Upper House.
These cases were not freakish. In the same period the English courts held it to be permissible for a local authority to dismiss women teachers if they got married – a decision which seemed perfectly reasonable in its time to a great many people but which no court of public law would conceivably uphold today. The common law denied a mother any legal right to the custody, care or control of her own children; and although legislation had enabled the courts to award a mother custody in limited circumstances from 1839, even the introduction by Parliament in the Guardianship of Infants Act 1925 of the principle that the child’s welfare was paramount was diluted by the removal from the Bill of a provision giving the mother and father equal authority in relation to their children. It was not until 1973 that equal parental authority was made part of our law, and not until the passage of the Children Act 1989 that we reached the plateau on which family law now stands.
Our standards change, and with them our perceptions of the self-evident and the eternally true. The law and its standards are not, and should not be, insulated from this process. The sea-change in our attitude as a society towards discrimination based on gender or marital status finds its expression in the law’s concept of what rationality and contemporary standards of morality will tolerate. The recent abandonment by the courts of the doctrine that marriage is a defence to rape illustrates the meeting point of changing moral standards and law. Our legal culture is less inclined than it was to claim private access to immutable truths and more ready to accept that legal norms form part of the ebb and flow of society’s ideas and standards. Where law and the judges who make it become controversial is in the areas where there is no consensus and where taking any stance at all means taking sides. The ‘persons cases’ are an awkward example of the courts taking the role of King Canute. Their epitaph was unknowingly written by one of their most passionate supporters, Professor Albert Venn Dicey, who considered the conclusive argument against giving women the vote to be that logically ‘it means that Englishwomen should share the jury-box and sit on the judicial bench.’
But there are creditable examples of the courts accepting responsibility for thinking through and deciding difficult issues which Parliament is not able or willing to handle. I have mentioned the somewhat convoluted history of the courts’ resistance to slavery; but a sharper and recent example is the engagement of the courts with the problem of life and death surrounding Tony Bland, the young victim of the Hillsborough disaster. Not long ago it is probable that the courts would have declined to give an advisory opinion on whether the life-support of a patient in an irreversible vegetative state could lawfully be withdrawn: they would have left the doctors to choose between maintaining life-support indefinitely and taking their chance of defending themselves on a prosecution for murder. In the different atmosphere of the Nineties, and in the absence of any relevant legislative provision or guidance, the courts undertook the task of giving a declaratory ruling. All the judgments repay reading, but that of Lord Justice Hoffmann in the Court of Appeal is a remarkable engagement, in approachable language, with profound ethical and moral issues, starting from a predicate made possible by the novelty of the question: ‘This is not an area in which any difference can be allowed to exist between what is legal and what is morally right.’ In the House of Lords, Lord Mustill and Lord Browne-Wilkinson went out of their way to stress that the courts were stepping into an area which it was imperative that Parliament should occupy; but Parliament has still not done so. The reason may be that some issues are too fraught and complicated, or (more cynically) too risky in terms of public response, for Parliament to engage with them; it may be that there is more pressing business; or it may be that Parliamentarians and departments of state are in fact choosing to leave the issue to a judiciary which is felt to be capable of reading and articulating a moral consensus.
Parliamentarians nevertheless do have some historical justification when they talk – as they do in private – about the need to draft judge-proof statutes. The separation of powers confers sovereignty on the courts in interpreting and applying Parliament’s legislation. But for every MP who complains of judges setting perverse constructions on Acts of Parliament there is a judge who complains of MPs passing laws which are unintelligible or unenforceable. In 1992 the Law Lords tried to square this circle in a major constitutional case, Pepper v. Hart, by permitting resort to ministerial explanations given to Parliament in order to clear up intractable obscurities in statutes. In doing this the House had to assume that Parliamentary answers, usually given in committee, sometimes given under pressure and designed less to clarify than to mollify, are a reliable guide, not to meaning (since the court will be concerned with a passage that has no obvious meaning) but to collective intent. The assumption sits uneasily with what the Attorney-General, Sir Nicholas Lyell, pointed out to the House in trying to dissuade it from taking this course: ‘Parliament is a political forum and not an interpretative agency. Those speaking to a Bill speak as advocates and politicians: they speak for the purpose of persuasion, not interpretation.’
There is something to be said for a court whose job is to ascertain Parliament’s intent getting it so far as possible from the horse’s mouth rather than guessing at it. But it is worth taking stock of the price paid in constitutional terms for this apparent advantage. To achieve it, the courts have voluntarily surrendered a segment of their fundamental job of interpreting legislation. In theory they have surrendered it to Parliament, the forum in which legislation is publicly debated. In practice they have surrendered it to the executive, for the great bulk of legislation today comes from departments of state and is piloted with departmental advice by ministers and government spokespersons through whipped majorities in both Houses. What Hansard records, and what the courts in intractable cases will now defer to, is not in any but an oblique sense a guide to the will of Parliament: Parliamentary statements are likely to reflect only the intentions of the department of state which, under ministerial tutelage, is seeking to carry its policy into legislative effect. They may be useful interpretative tie-breakers, but they are not guides to the will of a body whose members for the most part vote as they are told to.
Pepper v. Hart raises further constitutional questions: for example, where the meaning of an impossibly obscure passage of delegated legislation is in question in court, why should the minister who made it, or the official who drafted it, not give evidence on affidavit of what he intended it to mean? Although a departmental explanation is likely to be composed ex post facto with an eye to the issue which has arisen, there is no true difference of principle between this and an explanation given in debate in Parliament. But it would create an unacceptably obvious inversion of the relationship between judiciary and executive. The problem is in truth not soluble by judicial expedients: it points up a single major need – the need for Parliament to function properly as a deliberative body where legislation is considered by members who devote their full working time to the salaried and pensionable job to which they have been elected, and who know what it is that they are voting for or against.
It can be said with some force that there is something sacrosanct, at least in a democracy, about the separation of powers. Without it, as Montesquieu said, there would be an end of everything. But separation is a misnomer: the British state to which both Montesquieu and Madison looked as a model may well have furnished an attractive alternative to the absolutist monarchy from which each was seeking an escape (in Madison’s case, ironically, the British colonial monarchy, which domestically had been constitutionalised a century before), but neither then nor since has it been a state in which the legislative, judicial and executive powers were truly separate. Nor have they been in France or the United Sates. Rather, these are interlocking spheres of competence, and the Constitution itself changes to the same extent as the allocation of functions between these spheres alters. It can be said accordingly that since Pepper v. Hart our Constitution has given Parliament the last word on the meaning of opaque legislation, at least where Parliament, having been spoken to on the point, can be said in turn to have spoken on it Perhaps more to the point, however, it is the courts themselves which have volunteered this surrender: it has not been exacted by legislation, even though it has been volunteered under the duress of having to make sense of the unintelligible.
By contrast there is in my view no unconstitutional dimension to proposals to legislate for minimum sentences. They are wrong for quite other reasons. The judicial responsibility for sentencing is a historical artefact, not a ground rule of the polity. It is only in recent years that it has acquired the rudiments of a scientific or even an analytical foundation. For centuries it has been Parliament which either provides for or determines how offenders are to be sentenced, in recent years with increasing frequency. (Within two decades the power to suspend prison sentences was first given and then all but taken away by Parliament. Within two years the courts were first forbidden and then required to take an offender’s whole criminal record into account.) I have not heard it suggested that the maximum sentences which Parliament regularly prescribes are unconstitutional. The argument that Parliament has no business tying judges’ hands with minimum sentences is a powerful but entirely pragmatic one, founded on the unimaginable variety of situations which regularly crop up in court and which call for great flexibility. This stance is opposed by a media campaign against what is perceived as over-lenient sentencing of repeat offenders, although the Attorney-General has the power to have such sentences reconsidered and if necessary increased by the Court of Appeal. What is depressing is that the one solid piece of evidence of genuinely informed public opinion – a survey, organised by the Royal Commission on Criminal Justice, of jurors’ views on the sentences passed in cases in which they themselves had heard the evidence, which elicited relatively little criticism of sentences as over-lenient – is routinely ignored by commentators.
There are serious problems in sentencing policy, largely because the purpose of sentencing is not only itself contested but has necessarily to be adjusted from case to case depending on whether the demands of punishment, rehabilitation, deterrence or mercy are the most pressing; and also, and rightly, because public perception and public confidence are more alert to this than to any other judicial function. Nobody would claim that the courts always get it right, or even that the problems are necessarily soluble. The immediate question is whether these problems are susceptible to a simple legislative prescription. In debating this, sight is sometimes lost of what judges are there for – to do justice according to law. There is frequently an element of tension between law and justice, and much judicial effort is spent in trying to resolve it; but those who want sentencing to be prescribed in rigid detail by law risk creating a situation in which law and justice are not on speaking terms.
True, it can be said that anything that rearranges or reallocates responsibility under an unwritten constitution merely changes and never violates it. It can even be said of that most prescriptive of instruments, the Constitution of the United States, which has over the years yielded a kaleidoscope of answers to recurrent questions. But there can come a point in even an organic constitution at which change has to be acknowledged to be contrary to the ground rules. There is a respectable viewpoint that Pepper v. Hart is such an occasion, although as I have suggested it may have to be regarded as a special case of voluntary surrender. A perhaps stronger candidate for the description ‘unconstitutional’ is a provision of the social security legislation which was recently considered on appeal by the House of Lords.
Like any other self-contained system of adjudication under statutory powers, the social security system ought to abide by the law: indeed one might say that the rule of law otherwise has little meaning. The legislation itself provides for difficult points of law to go before commissioners who are experienced lawyers and then, if necessary, to the Court of Appeal and the House of Lords. Sometimes it turns out on appeal that benefit which has been refused in a large number of cases ought to have been paid to the claimants. The only immediate beneficiary is the single successful appellant; but provided a mechanism of review is there – and in the social security system it is – people who were refused benefit in earlier cases can in principle ask for the refusals to be reviewed in the light of the law as it is now known to be. In recent years the Department of Social Security has secured legislation which provides that any such review is to be determined as if the later decision had been ‘found by the commissioner or court in question not to have been erroneous in point of law’. Thus, as Lord Slynn explained it in the House of Lords, ‘where a decision is taken by a commissioner or by a court that a decision of an adjudicating authority is wrong in law, the assumption is to be made in other cases (contrary to the fact) that the adjudicating authority’s decision was correct in law.’ Their Lordships went on to hold that this artificial presumption that law enacted by or with the authority of Parliament can be definitively misinterpreted by adjudicating officials bound not only other adjudicators on review but the commissioners and the courts, too.
Such a provision, it might be thought, is an invasion by Parliament (assuming as one must that Parliament appreciated what it was doing) of the constitutional function of the courts not only to interpret legislation but to have their interpretation respected and given effect. It is one thing – itself a contentious thing – for the courts voluntarily to surrender a portion of their sovereignty to Parliament in the interests of clarity of construction; it is another for Parliament prospectively to overset the courts’ construction of a social security measure, not by amendment of the measure, but by insulating an inferior tribunal’s error from correction in accordance with the law. This is truly unconstitutional: it subverts the role of the commissioners and the courts as the unique forum of statutory construction. Instead of exercising its uncontested power to change the substantive law, whether directly or by delegation and whether prospectively or retrospectively, the legislative power of Parliament has been used here to reduce the interpretative function of the courts to tokenism, replacing it with a new legal category of irrebuttable adjudicative error. This is a step beyond the ‘Henry VIII’ clauses by which Parliament has over many years devolved to ministers the power to amend primary legislation, and which a former Chief Justice, Lord Hewart, earlier this century characterised as the use of a dispensing power familiar to the Stuart monarchs.
The by passing of Parliament and the courts in favour of executive discretion recently found an echo in a novel doctrine of law without legality: not long ago the now defeated Conservative Government proposed a new social security system which, though necessarily statute-based, was to be cut free in its operation from any legal supervision or adjudication, whether internal or external. The ambition itself is not new. Parliament spent much of the mid-19th century passing ‘no certiorari’ clauses to prevent the boards and commissions setup to regulate the workings of the new industrial age from being tied up with litigation on behalf of vested interests. The courts’ response, rooted in the ‘justice of the common law’, was reiterated in modern times in the landmark Anisminic decision that no statutory body had power to go wrong in law, that error of law nullified a decision and that a void decision could not logically enjoy the protection of a no certiorari clause. Although a few such privative clauses have been enacted since then they have not been tested in court. But the coming reconstruction of the social security system may bring something different. Consider the departmental publication which initiated the recent review:
But the law does not just specify rules of entitlement. It also lays down many of the procedures by which benefits must be delivered. This has two effects. First, administrative matters end up being specified by the courts, often in ways never envisaged by Parliament. And second, procedures become petrified in inefficient routines. My ... proposition is therefore that laying down procedures in law is a barrier to efficient customer service ... Fundamental to the Change Programme will be a review of the legal basis of decision making and appeals. Above all it will consider to what extent, if at all, the law needs to specify the procedures by which decisions must be taken. The prime interest of claimants is to obtain their full benefit entitlement, speedily – with the right to an objective review if they dispute the DSS decision. There is little advantage to claimants if their claims go through the right processes but [they] are awarded the wrong amount. Likewise it is not clear what harm is done if claims do not go through the right procedures but the amount awarded is nonetheless correct.
The reader glimpses a new universe, in which claimants who have not been given a chance to put their case or have been given no reasons for a decision, and so have no way of knowing what attention if any has been paid to their circumstances by the adjudication officer, appeal to tribunals who have to start again from scratch – unless the tribunals are to be likewise free to disregard all norms of procedure and to fix whatever figure appeals to them. Somewhere in this universe the ‘correct amount’ for each claimant will exist; but since there will be no tedious procedures for arriving at it, there will be no way of knowing when it has been reached. It was a relief to find that this arcadia of government beyond law did not appear in the text of the green paper to which the passage I have quoted formed an annex, and that something more recognisably constitutional is likely to accompany the rationalisation of the administration of social security. In fact the green paper was reassuring: if its proposal that an appeal body ‘should have the scope to correct its own wrong decisions without the need for referral to the commissioners’ were taken seriously, it might mean repealing the unconstitutional provisions of the present legislation.
It is perfectly understandable that with impermanent and penetrable boundaries to the theoretically separate powers of the courts and Parliament there should be occasional border incidents and a measure of mutual sensitivity. These do not contradict the presence of a generally stable and functional system. Although the courts cannot claim an unbroken history of loyally implementing Parliament’s measures, they have stood as firm as legislation has permitted on the role of the justice of the common law in a democracy. Such cause as Parliamentarians have for anxiety about what the courts will make of their legislation does not justify the erosion by Parliament, or more precisely by the ministers and departments on which Parliament depends, of the constitutional role of the courts as the arbiters of legality. History suggests that any Parliament which creates pockets of arbitrary power for executive government is taking risks with not only the courts’ but its own status.
Real life, for the rest, can be relied on to go on throwing up problems which Parliament either cannot or will not resolve. Not every such problem is justiciable, and not every justiciable problem can be satisfactorily answered by legal reasoning. The case of Tony Bland illustrates all of this; but it also demonstrates a perhaps new barometric quality in the courts’ responsiveness to public issues, and in doing so it enhances the case for the courts of common law as an integral element in the continual remaking of the Constitution.