Law and the Whirligig of Time

Stephen Sedley

• Publisher: Hart Publishing
• Year: 2018
• ISBN:
  9781509917112
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

For over 30 years, first as a QC, then as a judge, and latterly as a visiting professor of law at Oxford, Stephen Sedley has written and lectured about aspects of the law that do not always get the attention they deserve. His first anthology of essays, Ashes and Sparks, was praised in the New York Times by Ian McEwan for its 'exquisite, finely balanced prose, the prickly humour, the knack of artful quotation and an astonishing historical grasp'. 'You could have no interest in the law, ' McEwan wrote, 'and read his book for pure intellectual delight.' The present volume contains more recent articles by Stephen Sedley on the law, many of them from the London Review of Books, and lectures given to a variety of audiences. The first part is concerned with law as part of history - Feste's 'whirligig of time'; the second part with law and rights. The third part is a group of biographical and critical pieces on a number of figures from the legal and musical worlds. The final part is more personal, going back to the author's days at the bar, and then forward to some parting reflections.

Law and Rights

8

The Role of the Judge

Part of a paper given to the New Zealand judiciary in March 2014— perhaps slightly more unbuttoned than an article for a public journal would have been.

INDEPENDENCE AND DICEY

EVERYBODY BELIEVES IN the rule of law, but few people could tell you what it means; and for everyone who could tell you, there would be two others to say they were wrong. But we at least know, or think we know, that the concept originated with Albert Venn Dicey’s Introduction to the Study of the Law of the Constitution, first published in 1885.

Dicey’s book was divided into three parts. The first was ‘The sovereignty of Parliament’, something which Dicey took to be fundamental, total and beyond challenge. As Brian Simpson wrote:¹ ‘Dicey announced that it was the law that Parliament was omnicompetent,² explained what this meant, and never devoted so much as a line to fulfilling the promise he made to demonstrate that this was so.’ Moreover, when some three decades later Irish home rule came on to Parliament’s agenda, Dicey changed his mind about its omnipotence, lamenting in his final edition in 1915 that parliamentary sovereignty had fallen prey to the party system—something repeatedly pointed out by political scientists before him.³

Dicey’s second section was ‘The rule of law’. His third dealt, much more briefly, with constitutional conventions. He listed the components of what he took to be the rule of law as follows: first, that there could be no punishment or penalty save for a proven breach of the law; secondly that the same law applied to everyone and was administered in the ordinary courts; and thirdly that it was from decisions of the courts, and not from any fixed constitution that these principles sprang. Even though Dicey continues to be credited with having both identified and articulated the concept of the rule of law, no modern account of it comes anywhere near adopting these as its defining components. For example, although Dicey forgot to mention it, trial before independent and impartial courts is one of the most fundamental requirements of anything worth calling the rule of law.

One striking characteristic of Dicey’s thesis, so apparent that it is commonly overlooked, is that it is not couched in theoretical or normative terms at all: it is a Panglossian account (and an incomplete and inaccurate one) of the English legal system at the height of its Victorian self-assurance, as disparaging of foreign systems as it is boastful about our own, reading more like a pamphlet than a textbook. But where Mr Podsnap considered that our constitution had been ‘Bestowed Upon Us By Providence’, Dicey dismissed as ‘absurd’ the proposition that the British constitution ‘has not been made but has grown’; on the contrary, Dicey said, it was ‘a judge-made constitution’—an assertion of comparable absurdity. He was seemingly unable to comprehend the complex mass of historical forces—political, legislative and prerogative, as well as judicial—which had gone into the making of a constitution which contained far more than his account of it allowed. Dicey has now been debunked many times,⁴ but he is still taught in the law schools because the rule of law continues, for good reason, to have a totemic importance. Yet it is hard to dispute Ferdinand Mount’s appraisal: ‘It seems extraordinary that such an erratic and violent thinker could ever have achieved such monumental status as a constitutional authority.’⁵

THE SEPARATION OF POWERS

There continues to be a consensus that, whatever else the rule of law demands, it requires a significant measure of separation between the legislative, the judicial and the executive powers of the state. But it is increasingly doubtful whether this tripartite division, derived from Locke at the end of England’s century of revolution and enshrined by Montesquieu in the twilight French autocracy and Madison in the dawn of American republicanism, is any longer adequate. Even in the eighteenth and nineteenth centuries the established church in England and the Catholic church in France were arguably discrete powers within the state. (There was nothing comparable in the USA because the constitution deliberately excluded it.) In many modern democracies it can be argued that the security services have acquired a degree of autonomy and of influence over the other limbs of the state which ranks them as a separate power. And while Burke’s characterisation of the press as the fourth estate of the realm was probably intended as a compliment, it also represents a serious truth: that the media are today able to influence, even dictate, tranches of public policy, basing their claim to democratic legitimacy on a popular mandate which they themselves have constructed. I will come in a moment to the implications of this for judicial independence.

Before I do so, I want to focus a little more sharply on the judicial component of the state’s powers. Madison was very clear, in the Federalist, that Montesquieu had been right to characterise the judiciary as the weakest of the state’s three branches, so that ‘all possible care is requisite to enable it to defend itself’ against attack by the other two. By the end of the nineteenth century Dicey, by contrast, felt able to claim that the English constitution (he always excluded the Scots) was in all its essentials judge-made. He was as wrong about this as about most other things, but he would have gone along with Madison, were it not for his xenophobic refusal to say anything good about the French, in adopting Montesquieu’s adage: ‘There is no liberty, if the power of judging be not separated from the legislative and executive powers.’⁶

A significant measure of interdependence between legislature and executive, albeit it has come close in our era to symbiosis, has always been recognised as unavoidable. The same is not the case with the judicial power. While the judiciary, following the historic compromise at the end of the seventeenth century, accords Parliament the last word on what the law is to be, it is the function of the courts alone to determine what the law is, and to apply it.

IMPARTIALITY AND INDEPENDENCE

To say independent, however, is to beg some large questions. Independent of what and of whom? The judicial oath, to do justice according to law without fear or favour, affection or ill-will, says most of what needs to be said; but it needs unpacking. First of all, justice according to law is something of a paradox. Not all law produces justice, and not all justice accords with the law. We struggle with this conflict almost daily, and valuable things have been written about it;⁷ but it is not my topic now.

Affection and ill-will are the enemies of impartiality—a state of mind. They have to do, of course, with more than the obligation to declare an interest and to recuse oneself.⁸ They are palpable in the mental struggle that Crewe CJ described in his judgment in the Oxford Peerage case in 1625: ‘I have laboured to make a covenant with myself, that affection may not press upon judgment.’⁹ For Crewe on that occasion judgment and affection turned out to run in the same channel. But it isn’t always the case. All judges know both the satisfaction of reaching a conclusion that feels just, and the dissatisfaction of being driven to a conclusion we would rather not reach. What few of us can do is put it in prose like Crewe’s.¹⁰

I said a moment ago that impartiality is a state of mind. Independence, by contrast, is a state of being, and fear and favour are its enemies. It is easy enough to get public agreement that judges should not have to fear for their jobs every time they give an unpopular judgment, and easy also to get judicial agreement that judges who are no longer fit to sit should stand down. It’s in the vast hinterland of these twin peaks that the difficulties arise.

ACCOUNTABILITY

Take, first, the constant use of the adjective ‘unaccountable’ to describe the judiciary. Of the two distinct things the word signifies, one is false and the other is destructive. The false suggestion is that judges do not explain what they are doing, when the fact is that they account publicly and in detail for every single thing they decide; and for all but the most elevated of us the account has to bear scrutiny by a superior court. But the commentators who wave the word about don’t mean this: they mean that we cannot be unseated and so are beyond democratic control. The fact that making judges removable by some kind of journalistic anathema or fatwa is antithetical both to independence and to the rule of law is eclipsed by the alluring prospect of editors and proprietors being able to campaign for the removal of judges whose decisions they dislike, and—just as useful—to put the fear of God into the rest.

It’s perfectly true that there are elected judiciaries in states which respect the rule of law. But anyone who has read John Grisham’s The Appeal, which knowingly or unwittingly tracked an actual case,¹¹ will appreciate how candidates for the state bench can be bought by powerful litigants. I recall a conversation with a chief justice of Texas, who had to run periodically for office (‘You run as a Republican—you don’t get elected any other way in Texas’), his campaign bankrolled by law firms who appeared regularly in his court. Was that embarrassing in any way? ‘Not a problem,’ he said.

But the federal judiciary is appointed for life—and for judges in the US, as for many prisoners, life means life—albeit through a heavily politicised process. Once appointed, federal judges can be removed only for misconduct. The same is true of the English judiciary under the 1701 Act of Settlement;¹² but no bad English judge in three centuries and more ever faced impeachment for unfitness or misconduct.¹³

JUDGES AND THE MEDIA

Accountability aside, media pressure is a present and growing problem for judges at all levels. Reaction to it can take two extreme forms. At one end, there is the occasional judge who has an uncontrollable urge to ingratiate himself or herself with the media. In England the worst modern example has probably been James Pickles, the circuit judge who boasted publicly about his dubious judicial talents and ended up, briefly, as a chat show host and a columnist for the Sun newspaper. At the other is the judge who is so publicity-shy that he will not have a drink in a pub for fear of being photographed there—in parodic form, the Most-Feared Judge in Theo Mathew’s Forensic Fables who, at the end of a day spent bullying counsel and terrorising witnesses, would return to the digs he had lived in since he was a student and cry himself to sleep with a children’s book.

Most of us try to position ourselves somewhere between these two poles. But we are not sophisticated in media relations, and a number of judges have been caught off guard by a polite and deferential approach that has resulted in toxic publicity. The old journalistic trick of politely asking for an interview too often works: the judge, in the course of declining to be interviewed, explains at length why he or she has nothing of interest to say (sometimes disastrously including the words ‘We’re just good friends’), and realises too late that the request for an interview was a red herring: the journalist by now has everything necessary for a story.

Media training, which the UK judiciary have at times been offered, tends to compound the problems. PR consultants advise you to turn up in the studio with three points which you propose to make regardless of the questions. This is bad enough when politicians do it, as they regularly do. If a judge does it, it suggests evasiveness and arrogance. But even if you deal candidly with the questions, you cannot stop the broadcaster editing, misreporting or sensationalising what you have said.

In the UK this has not meant total radio silence. A series of sound broadcasts called ‘Unreliable evidence’, made for the BBC using judges and practising lawyers to discuss serious issues for a full hour and going out with only minimal editing, has set a high standard for public service broadcasting about the law. But the big problem is not what judges say to the media. It is what the media say to and about the judges. In the UK, and it would be surprising if it were only the UK, both the tabloid and increasingly the broadsheet press no longer have any fear of denouncing and on occasion traducing judges whose decisions they do not like. The era when Lord Hewart was able to announce ‘His Majesty’s judges are satisfied with the almost universal admiration in which they are held’,¹⁴ and in which a Lord Mayor could tell the judiciary that they had ‘a greater understanding of human nature than any other body of men in the world’,¹⁵ is mercifully gone. So are the days when murmuring judges, as contempt of the judiciary was called in Scotland, could be visited with fines or imprisonment. To take free speech about ourselves seriously we need broad backs, for a bench which sits as judge in its own cause is bad news for the rule of law. But that does not mean that the law of libel should not protect judicial reputations, or that judges should not use whatever extra-judicial mechanisms exist for correcting falsehoods in the media.

None of this, however, addresses what I believe to be the most radical effect of the media on the judicial function: the probability that a particular decision in the case before you will provoke media outrage, whether real or simulated. The pressure is increased by the knowledge that some papers—the Daily Mail most prominently in the UK—specialise in personalising issues on their editorial agenda.¹⁶ It is in such cases that the constitutional obligation to decide without fear or favour comes under the greatest stress. I don’t imagine any of us has consciously given in to it; yet its effects are everywhere. When I became a judge in 1992, the going rate for a daytime burglary of an unoccupied house was 18 months. It is now three years, and the prisons are bulging. The main thing that has changed in that time has been the amplification of the media chorus denouncing judges as soft on crime. The fact that government research has shown that most jurors, asked afterwards, would have given lighter sentences than the judge¹⁷ is not a fact which sells newspapers. The dominant canon of journalistic faith is that judges are out of touch with what the press considers itself entitled to characterise as public opinion, since it is the press itself which generates it.

Possibly the central paradox in the judicial role is that judges are simultaneously intensely private and intensely public individuals: public because everything they do as judges is open to scrutiny and criticism, not least from their own colleagues; private because they must avoid situations which may compromise their independence or appear to do so. Yet it is the refrain that we are out of touch that drives the critique. The fact that judges learn more than most others, including journalists, about the detail and the downsides of other people’s lives passes the critics by.

JUDICIAL IMMUNITY

There is one genuinely problematical dimension of accountability which I have not yet touched on: judicial immunity from suit. Every other professional person is today liable in damages for losses directly caused by professional misconduct on their part. Why not judges?

The immunity of judges from tort claims arising out of their conduct of proceedings or their judgments is of long standing. Tom Bingham in The Rule of Law traces it to statutory provisions long antedating the Act of Settlement 1701, though manifestly postdating the impeachment by the Long Parliament of the judges who upheld the imposition of the Ship Money. But as articulated since then it has been an artefact of the common law.

Even viewed in isolation, the judiciary creating law for its own protection is not an attractive sight. But the language in which it has been done has on occasion been truly embarrassing: ‘The public are deeply interested in this rule, which indeed exists for their benefit and was established to secure the independence of the judges’ said a judge in 1863. ‘There is something so monstrous in the contrary doctrine,’ a judge had said half a century earlier, ‘that it would poison the very source of justice and introduce a system of servility’.

It really is not helpful to conflate two quite different things in this way. There can be no question about the need for protection from the threat of reprisal by way of a negligence claim for an unwelcome decision or for the way a case has been conducted—for example by believing a witness whose veracity or reliability is contested. Without protection from such claims, judicial independence is devoid of meaning. But does it follow that a judge who can be proved to have acted maliciously or corruptly should share the immunity?

I have argued in the past, and still think, that if there is one topic on which it is Parliament and not the judges who should have the last word, it is the breadth of judicial immunity from suit. When Trinidad achieved independence, the constitution it was given by the Crown included fair trial rights enforceable against the state. When a young Trinidadian barrister, Ramesh Maharaj, was improperly gaoled for contempt by a judge to whom he had stood up, the Privy Council upheld his claim for damages against the state. For if it is the state which guarantees a fair trial and the state which provides the judge to conduct it, it is not illogical that it is the state whi...

Table of contents

• Cover
• Dedication
• Title Page
• Preface
• Acknowledgements
• Contents
• History
• Law and Rights
• People
• Occasional Pieces
• Afterword: A Different Cat
• Index
• Copyright Page