Profile: Lord Denning

The power, not the glory

David Wyn Williams

Last week in the Court of Appeal, Lord Denning, Master of the Rolls, sitting with Lords Justices Stephenson and Lane, upheld the High Court judgement against the NGA members who had sought an injunction restraining their employers from dismissing them because of the 'disruptive industrial action' of their union. The attitude of the NGA towards the Newspaper Publishers' Association reminded Lord Denning of the French remark, "This animal is very wicked — when attacked he defends himself." The judgement may well be among the most important of many vital decisions made by Lord Denning.

Few people outside the loquacious yet strangely tight-lipped legal profession realise the legislative power vested in Her Majesty's judges. As a matter of professional tradition, judges rarely stress their law-making powers. Indeed, on many occasions judges make new law or interpret laws in ways Parliament never intended while hiding their creativity behind a screen of analogy or precedent. The long road of training and experience that leads to the Bench imposes strong conforming pressures. Occasionally, however, a judge seizes a torch With reforming zeal and Sets out whenever oPportunity arises to throw light on obscure corners of our legal system and to exorcise the ghosts he will certainly find lurking there.

Such a torchbearer is Alfred Thompson Baron Denning of Whitchurch. Lord Denning is Master of the Rolls. To put aside the quaint Phraseology, he is the chief justice of the civil side of the Court of Appeal. He has held that Office since 1962. There, perhaps, the ordinary story of judicial achievement goes awry. For Lord Denning was demoted voluntarily from the lofty heights of the supreme court of the land, the House of Lords, to this office in an unprecedented fashion. He was demoted because he wanted the power rather than the glory. He has been a judge for over thirty years. And through this long and distinguished judicial career one has been constantly aware that the torch is being borne aloft, and proudly SO. Lord Denning's own phraseology, full as it is Of evocative image, is perhaps a little less flighty.

Central to Lord Denning's judicial and legislative activities is his belief that "whenever a man has a right, the law should give a remedy • • . This principle enables us to step over the trip-wires of previous cases and to bring the law into accord with the needs of today." The English judiciary relies heavily on its own past decisions as a source of law, and, traditionally, courts were bound to follow the decisions of higher courts, and in the case of the senior courts, their own previous decisions also. Lord Denning has not hesitated from a headlong Clash even with this system.

In 1966 Lord Gardiner announced a relaxation of the strict doctrine of precedent in the House of Lords. Lord Denning, unsuccessfully, tried to make the Court of Appeal follow suit. However, in the famous libel case that arose over the command of the PQ 17 convoy, he took the opportunity to go one stage further. In that case he held that the House of Lords in a Previous decision had got their law wrong, and plat therefore this decision of theirs was not to 1..)_e followed. The case was appealed to the House of Lords. In giving judgement their Ldships, led by Lord Hailsham the Lord _C Chancellor made it abundantly clear that their

Lordships were not amused by such activities. Several themes run through the law-reform

ing of Lord Denning. He has thgr

attention his judicial career paid much tt e

ion to the laws which deal with marriage and its break-up He has also consistently tried to assist individuals who, because of uneven contractural bargaining, find themselves

caught by the small print exemption clauses of a contract. Similarly he has striven to help people confronted by bureaucracy, be it government department, local authority, union or tribunal, to get any deserved redress from the courts. Elsewhere, he has consistently worked to get the courts to take notice of the modern realities of the factors involved in the law dealing with liability for motor accidents and similar situations; he has sought a clearer balance between police powers, and public freedom; and he has tried to prevent procedures clogging the channels of justice or, even worse, diverting them. But perhaps his greatest contributions to English law have been in the field of family law. He was, in Parliament, a strong advocate of the divorce law reforms of 1969, and the other Acts . that have transformed our laws on the breakdown of marriage over the last few years. He has in this connection utilised in full the right his life barony gave him of taking part in the legislative activities of the House of Lords. Lord Denning, using as a base the new matrimonial property legislation, which he had played no small part in bringing about, has virtually imported into English law the idea of community of property, whereby possessions of the husband and wife are regarded as pooled for the general benefit of the family. As Leo Abse remarked, for the first time the promise, All my worldy goods I thee endow; is more than an empty phrase. Denning's support of the 1969 measures of divorce reform, adopting the idea of the irretrievable breakdown of the marriage in place of the hunt for the offence of a guilty party, derived in part from the fact that the law should face up to reality. Where marriages had genuinely failed, and the partners had formed other stable unions, they should be allowed to regularise the situation. He found additional support in the Church of England's support for the measure. This is significant for, while in one case he noted that "the thunders of the Church have lost their force," his sympathies still reflect a strict moral code: "I look, as I trust I shall always look, to the proper and due enforcement of the law and order of this country." Another area of the law to which the Master of the Rolls has been paying attention, is industrial relations. In 1973 he had to try a case involving a London tug crewman, Mr Shute. Shute had decided to avail himself of his rights under the Industrial Relations Act 1971 and opt out of being a member of the TGWU, even though he was working in what was in practice — though not of course in law — an all-union job. This caused, as was anticipated, a refusal of the other tugmen to work with him. Shute was therefore laid off with full pay. In a subsequent court action arising from this, Lord Denning commented: "True it is that he has a right not to belong to the union. True it is that he has a right to work. But he has abused those rights beyond measure. . . He had no possible justicification for withholding his dues to the union . . Mr Shute may be said to have brought everything on himself by his own eccentric conduct."

This should be compared with his attitude in another industrial relations case a little later this year. Here the Court of Appeal was dealing, in Lord Denning's words, with a case "which reminds me of the story of David and Goliath, with a difference. Goliath is winning all along the line. David had sought to find some stones in the brook called the Industrial Relations Act 1971; but every one of them has so far bounced off the invincible Goliath." The case concerned recognition by the Post Office of the UPW and its refusal to recognise the little Telecommunications Staff Association. TSA were complaining of the refusal by the Post Office of any facilities for recruiting and the like on Post Office premises. Lord Denning's judgement supported the TSA claim, concluding in these words: "There is a danger in the establishment of a monolithic organisation without a rival. It may become so all-powerful that it will stamp on the rights of others. When such rights are conferred by common law or by statute, the courts should uphold them." This latter statement, rather than the earlier one, is a true reflection of the principle that seems to lie behind his reforming judgements in the many cases he has handled involving an unequal contractural situation. His total lack of sympathy with the small print on a contract can be shown by the following passage from a judgement dealing with an exemption clause on a travel ticket. Commenting on freedom of contract, he said, "The theory was, of course, a fiction. No customer in a thousand ever read the conditions. If he had stopped to do so, he would have missed the boat or the train."

Lord Denning has a formidable record of parliamentary speeches as well as extra-parliamentary speeches and writings to his name. On many occasions, after a day in the courts, he has arrived at Westminster at five or six o'clock to lend his weight and experience to a debate. He has not shirked from stating his opinions on some of the most controversial social issues of the day, such as abortion (which he supported) and the death penalty abolition (which he opposed). Through all these multifarious activities one detects a sense bf mission, a profound belief that his attitudes are the right attitudes and should prevail, against, if needs be, all contrary opinion. His conduct is more akin to the politician, who knows the end in sight and then seeks the means, rather than the traditional role of the lawyer and judge, operating as an expert in the means to an end someone else has determined. Perhaps he gains some of his great strength and resilience from being an outsider. His father, he is always proud to remind people, was a draper. Unlike the preponderance of judges, he went to grammar school, and the subject of his first degree at Oxford was mathematics (a subject at which he obtained a first, a rare attribute in a profession not exactly well known for its ability to count). Throughout he has retained strong links with Hampshire, where he still lives, and which both his title and his accent evidence. He has been both a local parish councillor and a JP, and is a staunch member of the local church. Yet this is not enough to explain the urgency with which he drives himself still at seventy-four, long after others have retired, to his self-imposed task of turning law into justice. He is still one of the hardest working of the judges. Again, one must look for some explanation of the spirit which fights so hard for the rights of the innocent individual, yet is prepared to stigmatise so surely those who have fallen by the wayside.

Whatever the answer to these points, this judge, whose motto might well have been "Onward, Christian Soldier," has already left a very deep impression not just on some of our rules of law, but on the underlying principles and attitudes with which we view our judges and their decisions. His single-mindedness, expressed in terse speech, but evoking when needs be powerful imagery, will dominate the law reports for years to come.

David Wyn Williams is solicitor and a teacher of law