Stephen Sedley writes about the state of the law, and about the wild wood that surrounds it

  • A Matter of Justice: The Legal System in Ferment by Michael Zander
    Tauris, 323 pp, £16.50, February 1988, ISBN 1 85043 040 3
  • The Coercive State: The Decline of Democracy in Britain by Paddy Hillyard and Janie Percy-Smith
    Fontana, 352 pp, £5.95, February 1988, ISBN 0 00 637083 7

When the judges assembled to compose a Loyal Address to Queen Victoria on the opening of the Law Courts, the draft before them began: ‘We your judges, conscious as we are of our manifold defects ...’ The Master of the Rolls exploded: ‘I am not conscious of having manifold defects.’ Lord Justice Bowen, who was a scholar with a sense of humour, suggested, to mollify him, that the Address might begin: ‘We your judges, conscious as we are of each other’s manifold defects ...’ I have to admit, in relation to the subtitle of Professor Zander’s book, that I was not conscious that the legal system was in ferment. But a lot depends on your point of observation. From inside a deeply conservative and complacent profession almost anything can look like the end of the world, starting with the change from foolscap to A4 stationery. I recall the leader of the Bar a decade ago alerting us by circular letter to the appointment of a Royal Commission on Legal Services, and describing criticisms of the Bar which had not yet been advanced to it us ‘ill-informed’. In our divided profession we find change upsetting and criticism unwelcome, unless they happen to affect the other side of the profession.

Nevertheless Professor Zander has filled a book with useful data about current or mooted changes, and one can see that from within the charmed circle they may well look like a state of ferment. To the world outside, however, I doubt whether it would make a ha ’p’ orth of real difference if all the current criticisms were accepted and all the reforms implemented. This is not only because what is going on is little more than an attempt to haul lawyers into the 20th century before the rest of society embarks on the 21st. It is also because the real interface between law and society is not located where most legal practitioners and many legal theorists believe it is. A literate Martian, for example, would not believe that Michael Zander was writing about the same society as Paddy Hillyard and Janie Percy-Smith, and at the same period of time. There is simply no space in Zander’s world-picture for the possibility that ours is a coercive state or that democracy is in decline here – while if Hillyard’s and Percy-Smith’s world-picture is even half right, Zander’s ‘ferment’ is mere froth.

I do not want to fall into the error of criticising Zander’s book for not being what it does not purport to be. It does not seek to address the question of what the legal system is for in our society. It assumes that the system’s role is what the system says it is: the regulation of relations between individuals (which include corporations), and between individuals and the state, according to objective rules which apply equally to everyone, serviced by mechanics called lawyers and judges whose terms and conditions and restrictive practices need watching like those of any other work-force. Within that comforting assumption it scrutinises with learning and acumen how well the system is doing by its own lights, which do not differ in any radical way from those of Professor Zander. ‘Judged as a collective enterprise,’ says Zander, ‘the contemporary English judiciary seems broadly to give tolerable satisfaction.’ Well ... by what standards and to whom? No doubt by its own standards the judiciary gives tolerable satisfaction to people who share its world and its values. Professor Zander’s arguments with the system, like Rat’s arguments with Toad, can be conducted without rancour by the shared fire-side. But from the wild wood outside the windows, inhabited by creatures who do not live by the same rules, worrying noises keep intruding.

For example, in a mainly statistical appraisal of the use of legal aid in magistrates’ courts, where over nine-tenths of criminal cases are tried, Zander gives a passing mention to ‘the differential policy applied by different courts’ in granting legal aid to people who cannot afford a lawyer. In a total of two sentences it is described as ‘an unmet need’ and ‘unsatisfactory’. In truth it is a well-known scandal, deserving sharply critical treatment – well-known, at least, to the Lord Chancellor’s Department, to the solicitors trying to defend people in those courts where legal aid is dispensed like thin soup to the undeserving poor, to lawyers and academics who are concerned about the quality as well as the quantity of justice, and to people who pay fines and go to prison because they can’t get a lawyer to defend them.

Then again, Zander records without comment that civil legal aid is not available for libel actions. In any treatise on the state of a legal system, this surely calls for comment. Is there a good reason for it or is it just an inexplicable anomaly? It has been a feature of the legal aid system since its introduction, and it reflects some quite serious aspects of legal policy. Its necessary underlying assumption is that people without money of their own either do not need or ought not to have public assistance to bring or defend libel proceedings. Why not? The wound an unjust public slur can inflict is if anything greater for those unused to limelight and public controversy than it is for the prominent and well-heeled. But the truth is that the law of libel was not made for humble people; they can be, and regularly are, defamed with impunity by a press which mangles ordinary people’s reputations with abandon, because they cannot sue. It was made for the good and godly, for people with whom the judges who made the law (it is practically all judge-made) could sympathise, who because they had a status worth protecting could be assumed to have the funds with which to protect it. If Jeffrey Archer had been in an earlier and less pecunious phase of his life when the Daily Star libelled him, he would never had got to court to vindicate himself. And it doesn’t end with bringing libel actions. Legal aid is not available to defend a libel action either. What possible justification is there for denying legal aid to people of modest means if they are sued for libel and want to establish the truth of what they have published or to mitigate the damages they are going to have to pay? In a society which boasts of freedom of speech, these are not oversights or quirks of the law. They reflect and exaggerate a fundamental inequality in the protections which the law affords to the rich and the not so rich respectively, and they are a reproach to a legal system whether it is in ferment or not.

One result of looking so closely at the nuts and bolts of the legal machine is that insufficient attention gets given to what the machine is delivering. There are major issues of delivery which Zander ought to be addressing. For example, interviewing and counselling are not even recognised as relevant skills, much less taught, by the profession. Yet this is the critical point at which most people encounter the law. Whether it is by accident or by design that many lawyers come across to their clients as pompous and incomprehensible, the failure to recognise that we even have a problem of communication certainly deserves a place in a treatment of today’s legal profession. So does the delivery of legal remedies in a number of areas. Why are the sex and race discrimination laws so difficult to enforce? Ought the tribunals and judges who hear the cases to be trained, as they are in parts of the United States? Is there a systemic resistance to this kind of social legislation? Is the new burgeoning of administrative law correcting the abuses of power which affect society’s under-classes, or is it chiefly at the service of the already powerful? I would like Professor Zander’s always informed views on these and other issues: but even more, I would like him to recognise them as issues.

One of the inner mysteries of our system is how the contents of new laws are decided. Zander has a chapter promisingly entitled ‘Who are the real legislators?’ Hillyard and Percy-Smith have one entitled ‘Who governs?’ Zander’s not very novel thesis is that legislation is largely the work of the Civil Service rather than of Parliament. Hillyard and Percy-Smith agree, but they add an element from the wild wood which has no place in Zander’s comfortable world: the voices of the powerful interest groups and lobbies to whom the civil servants listen with a respect enhanced nowadays by their own ministers’ sponge-like attitudes to business interests. The official accommodation of these self-interested private lobbies in a representative democracy contains serious implications which – because of unequal resources – go behind and beyond the proper access of citizens to government. Parliament is filled with paid mouthpieces for private interests which do not coincide with the interests of the electorate. It is one thing for an MP to hold and declare a particular interest in a particular topic or issue. It is another for him or her to take money to promote it.

And this is only the visible tip of the lobby system. Huge professional retainers are now paid to consultants whose job is to bend the ears of the all-powerful civil servants and, where possible, their ministers. For as long as anyone can remember, the directors of the great corporations and trusts have come from the same schools and universities and have dined in the same clubs and country houses as the ministers and under-secretaries. The companies they control give large sums of money each year to the Conservative Party, and they no doubt expect and no doubt get something in return. Influence of this kind is unquantifiable; indeed, much of it is unascertainable; and in the newspeak of modern politics it is always deniable. But it is, I believe, one of the major influences, and almost always for the worse, on the laws we get in Britain. How did it come about that in the recent Consumer Protection Act criminal liability for two of the cruellest killers of all, tobacco and Pharmaceuticals, was expressly excluded? Did the tobacco and drugs industries just hold their breath and trust to the beneficence of Parliament? How is it that the new laws now being drafted to prevent car ferries capsizing are being whittled away before they have even reached Parliament so as to exclude any major modifications to vessels? You have only to look back at the British shipping industry’s protracted resistance to Plimsoll’s safety legislation to realise the anti-social power of this kind of tolerated pressure. Yet once again a government which is capable of getting very tough indeed with some wild-wooders – trade unions and benefit claimants, to name but two – treats its own kind with endless solicitude. No critical look at modern law-making can decently overlook this issue.

One reason why the British state gets away so readily with malpractice is that we reason backwards about it: from the unquestioned premise that our state is a democracy we conclude that the activities of government must be legitimate. Hillyard and Percy-Smith set out to examine this premise. It is a pity that the combative title and subtitle of their book, while faithful enough to their conclusions, do less than justice to their inspection of what can be found underneath the well-trodden stones of British society. While it is true that a huge apparatus of crude coercion is growing steadily – a billion pounds-worth of new prisons, a punitive social security system – a great deal of what they describe is a kind of secondary coercion: the systematic generation of acquiescence or consent. The two hang together, of course. For example, one important reason for the retention of the oppressive Official Secrets Acts, and the legally meaningless practice of getting civil servants to sign a copy of it, is that by stifling the flow of official information the Government can more readily manipulate news through the system of unattributable official leaks and briefings. Given the choice between this and no information, the media collude with it. The result is another form of state corruption which the press has little interest in exposing.

Perhaps, after all, these two books are complementary. The literate Martian will find in the one book the self-image of our state and our society, modestly complacent and mildly self-critical; and in the other the dark side, the state behind the state, the image that has no mirror. Hillyard’s and Percy-Smith’s thesis actually does a great deal to explain the short-comings of Zander’s critique. Anyone encountering the latter’s use of the adjective ‘liberal’ to describe Leon Brittan is likely to suspect that Zander’s relativities are lopsided. (A.P. Herbert would have likened it to the 13th chime of the clock – not only suspect in itself but casting doubt on everything that has preceded it.) And a look at Hillyard’s and Percy-Smith’s chronicle of Brittan’s record on the parole system, detention centres, prisons and phone-tapping will confirm the suspicion. Somehow people as superficially similar in background and training as these writers, academics all, inhabit different universes.

As will be apparent by now, my universe is not Professor Zander’s: but I will be for ever in his debt for a footnote in which he quotes from Hansard a confidential note that came into the hands of Toby Jessel MP, summarising the private discussion of defence counsel about how to use jury challenges in order to improve the chances of acquittal in the Cyprus secrets trial:

[A]’s point was that we wanted a young, working-class jury. [B] made the comment that he really wanted an anti-establishment jury and that we were better off to have a young middle-age middle-class jury ... [C] indicated that if the jury is not too well educated and if of too low an intelligence, they may take more note of the judge and therefore we ought to go for people who were young, not unsmart but no women. [D] chimed in by saying that if the jury were young they may be unpatriotic.

The names don’t matter, but these were some of the country’s top criminal advocates. Toby Jessel used the document as an argument for abolishing the right of the defence to challenge jurors, but no prosecutor need have any fear of an engineered acquittal if jury challenges are based on this kind of twaddle. What the note speaks volumes about is why the legal profession, both in what it does and in what it thinks and writes about itself, is so utterly out of touch with reality. Still, if reality is the grim affair described by the radical critics of the system, it is not surprising that those who are comfortably situated had rather not know about it.