Law Lords
J.A.G. Griffith
Law and Politics: The House of Lords as a Judicial Body 1800-1976 Robert Stevens (Weidenfeld £18.50) In no aspect of government is the British System more different from that of the rest of Europe than in the part played by the judiciary. The peculiar characteristic of our judges is their homogeneity and this they share with senior judges in countries like South Africa, the Soviet Union and (to a lesser extent) the United States. The contrast with most continental countries is striking. Today in France and Italy, tomorrow in Spain and Portugal, the division between judges of the Right and judges of the Left is, will be, manifest. As judges make both law and policy to a significant extent, it may be less confusing to have a single recognisable, political view; but it is little less divisive than open conflict.
This book is about the House of Lords as a judicial body since 1800, though the author does not get going seriously until 1844 and as the years proceed so the detail and length of treatment are properly englarged. Over 700 pages of text and indexes represent a considerable amount of scholarly research and two earlier books Must have been particularly helpful: Henston's Lives of the Lord Chancellors 1885-1940 (1964) and Blom-Cooper and Drewry's Final Appeal (1972).
The method is to consider the reported decisions over periods: 1912-1940 (`The Itise of the Professionals'); 1940-1955 (`The Era of Substantive Formalism'); and 1956-1976 (`Modern Times"); and to provide DNB-type sketches of the Law Lords and others entitled to sit. This means that the author's attempts at character analysis give rise to controversy.
For example, one of my favourites of recent times is Lord Morris of Borth-y-Gest. I think he was a splendid judge, although I disagreed with many of his decisions. According to our author, he was 'neither an intellectual in the manner of Wilberforce nd Diplock, nor an active lawyer in the Keid or Simon of Glaisdale style. . . He appeared to allow himself to be heavily Influenced by other Law Lords. . . almost inconsistent approach. . . less predictable than the other Lords „ . enigmatic asPects . . . could narrow issues remarkably . could engage in bold developMents' and so on. The final judgment is that Ivlorris 'left leadership to his coleagues . . yet was an important infantryMan'. Our author's style there and else'there resembles too closely that of a cavalry officer on his high horse. Despite its many virtues — range, detail, thoroughness — this book has a hole in its heart. It is not about the law and politics. It is about the attitudes of certain judges to their task of adjudication. The emphasis is on the conflict between substantive formalism and creativity. It shows how different judges at different times express their function as being either to declare the law or to develop it, but this is an unreal contrast and cannot sustain a political argument. Our author calls Lord Simonds (Lord of Appeal 1944-51, and 1954-62; Lord Chancellor 1951-54) 'the High Priest' of substantive formalism. Yet he invented a very serious crirne of conspiracy to corrupt public morals. Contrariwise, some, of our most 'creative' judges can be highly conservative when they feel inclined. Denning is an obvious example.
What matters is to seek to disco'ver the political bases of judicial reasoning. We know something of the political philosophy of our political leaders. But what moves those other legislators, the senior judiciary? We need to know not only what they do but why.
Assuredly the answer does not lie in their style, their manner, their rhetoric. These merely conceal their emotions and intentions. They have, necessarily, a view of the public interest and they are placed in positions where to come to a decision makes the adoption of such a view inevitable. On television the other night Lord Denning said that trade unions were 'almost outside the law'. That is a highly controversial statement in the sense that many people no less eminent than Lord Denning would say it was no more true of unions than of stores of other groups for whose protection the common law has developed or statutes have been passed. I do not myself object to Lord Denning expressing such views which shape his interpretation of the law he is called on to administer. I prefer that we should know where we stand.
Not to have enlightened us about those matters is the one major defect of this book. But it remains a work of considerable scholarship.
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