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 825775 9

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.

A book may be lurking there, as it must in many other corners of the legal attic. Brian Simpson himself embarked on such an enterprise some years ago with the 19th-century case, known to every law student, of the Crown v. Dudley and Stephens – the captain and mate of the yacht Mignonette who survived a ship-wreck by eating the cabin boy and were convicted of murder when they got home. What was so good about Simpson’s Cannibalism and the Common Law was that it went much wider than the one earlier book on the case, Donald McCormick’s Blood on the Sea, trawling in great social and nautical circles and retrieving wonderful things. Simpson’s new book on wartime internment in Great Britain does the same, with the deliberate result that the historic case which internment threw up, Liversidge v. Anderson, ranks not as the centrepiece but simply as one episode in a Byzantine, absorbing, and in one respect important piece of history.

Like the rest of us in the law business, Simpson first learnt about the case as a student. ‘Subsequent work,’ he comments, ‘has made it clear to me that, like the judges involved in that great case, we had only a very shaky notion of what it was all about.’ He has endeavoured to establish exactly what the case was and – equally important – was not all about. In recent years the Law Lords themselves have publicly repudiated their predecessors’ majority decision in support of arbitrary executive power, holding that it does not represent the law of this country and that Lord Atkin’s famous dissenting speech on that occasion does. In this situation Simpson’s critique and contextualising of the case becomes more, not less, relevant, for he does not adopt the adulatory view of Atkin’s judgment which is now the conventional wisdom among lawyers.

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