Hostname: page-component-cd9895bd7-8ctnn Total loading time: 0 Render date: 2024-12-25T04:25:52.807Z Has data issue: false hasContentIssue false
  • English
  • Français

LORD RADCLIFFE OUT OF TIME

Published online by Cambridge University Press:  11 March 2010

Neil Duxbury
Neil Duxbury
Affiliation:
Law Department, London School of Economics.
Get access

Abstract

An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
Image of the first page of this content. For PDF version, please use the ‘Save PDF’ preceeding this image.'
Type
Articles
Information
The Cambridge Law Journal , Volume 69 , Issue 1 , March 2010 , pp. 41 - 71
Copyright
Copyright © Cambridge Law Journal and Contributors 2010

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 His argument being that a court of last resort must follow its own rulings, because it matters more that decisions at final appeal are consistent and (subject to legislative intervention) conclusive than that individuals are never the casualties of unfortunate precedents: see, e.g., London Street Tramways Co. v. London C.C. [1898] A.C. 375, 379. (Unless otherwise indicated, all cases cited are House of Lords decisions.)

2 See, e.g., Brook's Wharf v. Goodman Bros. [1937] 1 K.B. 534 (C.A.), 545; Wilsons & Clyde Coal Co. v. English [1938] A.C. 57, 80; Joseph Constantine Steamship Line v. Imperial Smelting Corp. [1942] A.C. 154, 185.

3 See C. Cripps [Lord Parmoor], Do Well and Right and Let the World Sink (London 1915), p. 16; Lord Macmillan, Law & Other Things (Cambridge 1937), p. 49; Lord Wright, “Natural Law and International Law” in P. Sayre (ed.), Interpretations of Modern Legal Philosophies: Essays in Honor of Roscoe Pound (New York 1947), pp. 794–807.

4 P. Hennessy, “The Eternal Fireman Who Always Answers the Call of Duty”, The Times (30 January 1976), p. 16.

5 See, e.g., Learned Hand's comment on Radcliffe, cited after E. Griswold, “Greeting” in A.E. Sutherland (ed.), The Path of the Law from 1967 (Cambridge, Mass 1968), pp. 4–8 at 7 (“They do strange things in Britain with their judges. Here is one of the very best they have and he hasn't been doing the judging job for years”).

6 “Though he continued to carry out judicial duties when he was not fully engaged on an inquiry,” his DNB entry has it, “the law was no longer enough to satisfy his intellectual appetite.” R. Armstrong, “Radcliffe, Cyril John (1899–1977)” at www.oxforddnb.com (accessed 18 June 2008). Neither the judicial nor the committee work satisfied him fully: see Lord Radcliffe, Not in Feather Beds: Some Collected Papers (London 1968) (hereafter NFB), p. x.

7 See Flower v. Ebbw Vale Steel, Iron & Coal Co. [1936] A.C. 206, 211–2; Law Revision Committee, Eighth Report: Contributory Negligence (Chair: Lord Wright) (Cmd. 6032; 1939); Law Reform (Contributory Negligence) Act 1945.

8 Lord Kilmuir, “Law Reform” (1958) 4 J.S.P.T.L. 75, 81.

9 Lord Kilmuir, Political Adventure (London 1964), p. 302.

10 See R.F.V. Heuston, Lives of the Lord Chancellors 1940–1970 (Oxford 1987), pp. 226–39.

11 For data and commentary covering the period when Radcliffe was a judge, see T.J. Cartwright, Royal Commissions and Departmental Committees in Britain: A Case-Study in Institutional Adaptiveness and Public Participation in Government (London 1975), pp. 71–2, 220–1.

12 Lord Radcliffe, Censors: The Rede Lecture 1961 (Cambridge 1961) (hereafter Censors), p. 22.

13 Ibid.

14 At death he left over £350,000 net; when his wife died five years later, her estate was valued at almost £600,000 net. P. Hennessy, Whitehall (London 1989) (hereafter Hennessy, Whitehall), p. 566.

15 See Royal Commission on the Taxation of Profits and Income: Final Report (Chair: Lord Radcliffe) (Cmd. 9474; 1955) (hereafter Taxation), paras. 73–84; Lord Radcliffe, “Can a Wealth Tax be Justified?” (letter) The Times (3 July 1974) 17; NFB, p. 119 n *.

16 Hennessy, Whitehall, pp. 566, 548.

17 A.P. Herbert, Anything but Action? A Study of the Uses and Abuses of Committees of Inquiry (London 1960), p. 20.

18 Report of the Rt. Hon. Viscount Radcliffe, G.B.E. as to Procedures Followed in the University with regard to Receiving and Retaining of Information about Political Activities of the Staff and of Students, 14th April 1970 (University of Warwick, Coventry 1970) (hereafter Warwick 14th April Report); Report of the Rt. Hon. Viscount Radcliffe, G.B.E., Part II, 26th May 1970 (University of Warwick, Coventry 1970).

19 E.P. Thompson, Writing by Candlelight (London 1980), pp. 36–7.

20 The following sketch of Radcliffe's life draws on the following sources: Armstrong, above note 6; Anon, “Viscount Radcliffe: A Career of Distinguished Legal and Public Service” (obituary) The Times (4 April 1977), p. 14; C.H. Philips, “Obituary: Viscount Radcliffe” (1977) 40 Bulletin of the School of Oriental and African Studies 591 (hereafter Philips, “Obituary”); and Edmund Heward's informative but not particularly analytical The Great and The Good: A Life of Lord Radcliffe (Chichester 1994) (hereafter GAG).

21 See J. Lowe, The Warden: A Portrait of John Sparrow (London 1998), pp. 49–50, 64–5, 167. Oxford dons, Radcliffe felt, had a depressing tendency to treat “everything written or said by anyone else” as if it were “an essay which they are appointed to correct”. Cyril Radcliffe to John Sparrow, 5 March 1958, cited after Heward, GAG, p. 15.

22 His income in 1937, two years after he had taken silk, was apparently £17,584: Heward, GAG, p. 20. It seems that he acquired a significant amount of work that would have gone to two senior members of his chambers, Wilfred Greene and Gavin Simonds, before they became judges in the mid-1930s. Between 1929 and 1939 he is listed as counsel in sixty cases published in the official law reports, over half of which were heard between March 1937 and July 1939.

23 See C.E. Lysaght, Brendan Bracken (London 1979), pp. 192, 231–2.

24 L. Francis-Williams, Nothing So Strange (New York 1970), p. 214.

25 “I must say that I like the feeling of being a Law Lord …. [F]or though I shall miss, indeed miss very much, the partisan activities and excitements of the Bar, I am beginning to feel that a rather more dignified tempo will not come amiss.” (Cyril Radcliffe to Roy Harrod, 10 June 1949, Sir Roy Forbes Harrod correspondence and papers, British Library, Add. MSS 71193 f. 2.)

26 Report of the Committee on the British Film Institute (Chair: C.J. Radcliffe) (Cmd. 7361; 1948).

27 See Reports of the Bengal Boundary Commission and Punjab Boundary Commission (Radcliffe Awards) (New Delhi 1947); K. Young (ed.), The Diaries of Sir Robert Bruce Lockhart: Volume 2 1939–1965 (London 1980), pp. 623–4 (“Before going out [Radcliffe] made a bargain that the chairman's [i.e., his] decision must be final. This was just as well, for there was no chance of an agreed decision from the beginning”). Radcliffe was unwilling to accept remuneration for the work: Cyril Radcliffe to Christopher Addison [Secretary of State for Commonwealth Relations], 21 August 1947, India Office Records, Political Department Files, L/P&J/7/12500 ff. 18–19 (“I came to the conclusion at an early date that my post was one which I should prefer to regard as being an unpaid one …. [I]t is my desire that I should be enabled formally to relinquish any claim to salary or remuneration … ”).

28 See S. Khilnani, The Idea of India (London 1997), pp. 200–01; J. Higgins, “Partition in India: The Attlee Government and the Independence of India and Pakistan”, in M. Sissons and P. French (eds.), Age of Austerity (London 1963), 189 at p. 200 (“Radcliffe was chosen on the grounds that he would be an impartial judge – in other words he had never set foot on Indian soil and had no previous dealings with the country. His briefing at the Colonial Office is said to have lasted no more than thirty minutes, and he left England with no more than this information and a couple of maps”); Cyril Radcliffe to Harry Hodson, 30 May 1966, in H.V. Hodson papers, Hodson Box 3, PP MS 39/01/10, Archives & Special Collections, School of Oriental & African Studies, London (“I did not take the Indian job in order to oblige or humour anyone, nor was I in awe of anybody. I quite realised that I was going to carry a great deal of responsibility in place of others, and I did not expect either reward or approbation”). Radcliffe was pushed by Mountbatten to have the job completed within around a month – something Radcliffe was happy to try to do: see Lord Mountbatten to Cyril Radcliffe, 22 July 1947 and Radcliffe to Mountbatten, 23 July 1947 in P. Moon (ed.), The Transfer of Power 1942–7: Volume XII (London 1983), pp. 290–1. That Auden is casual with the occasional fact (Radcliffe travelled by air, and completed his work in just over five weeks) hardly diminishes his poetic account:

He got down to work, to the task of settling the fate
Of millions. The maps at his disposal were out of date
And the Census Returns almost certainly incorrect,
But there was no time to check them, no time to inspect
Contested areas. The weather was frightfully hot,
And a bout of dysentery kept him constantly on the trot,
But in seven weeks it was done, the frontiers decided,
A continent for better or worse divided.
The next day he sailed for England, where he quickly forgot
The case, as a good lawyer must. Return he would not,
Afraid, as he told his Club, that he might get shot.

W.H. Auden, “Partition” (1966) in Collected Poems, ed. E. Mendelson (London 1976), pp. 803–4.

29 Constitutional Proposals for Cyprus: Report Submitted to the Secretary of State for the Colonies by the Rt. Hon. Lord Radcliffe, G.B.E. (Cmnd. 42; 1956). As with India, Radcliffe spent little time on the ground (“a month or two”, by his own account: Lord Radcliffe, “The Problem of Cyprus” (1958) n.s. 49 United Empire 15) and completed the work quickly – his report was submitted just short of four months after his first visit to the island.

30 See Taxation; Committee on the Working of the Monetary System: Report (Chair: Lord Radcliffe) (Cmnd. 827; 1963) (hereafter Monetary System); Security Procedures in the Public Service (Chair: Lord Radcliffe) (Cmnd. 1681; 1962) (hereafter Security Procedures); Report of the Tribunal Appointed to Inquire into the Vassall Case and Related Matters (Chair: Lord Radcliffe) (Cmnd. 2009; 1963) (hereafter Vassall).

31 See, e.g., Lord Radcliffe, “The Fairy Story of Natural Rights” The Listener (22 November 1951) 877–79 at p. 879; “The Dissolving Society” The Spectator (13 May 1966) 590–92 (hereafter “Dissolving Society”) at p. 590; also “Law and Order” (1964) 61 Law Society Gazette 820–26 (hereafter “Law and Order”) at p. 822. His efforts at trimming were not always received enthusiastically. The final chapter of Monetary System – the only chapter which Radcliffe drafted (see Diaries of Sir Alec Cairncross (London 1999), p. 3) – concludes that monetary policy requires “a constant and profound diagnosis of the state of the economy which is to serve as patient and a clear perception of the likely effects, indirect as well as direct, of any particular measures” (para. 983). The conclusion was judged in various quarters to be bland and fudged: see, e.g., A. Sheldon (ed.), Not Unanimous: A Rival Verdict to Radcliffe's on Money (London 1960).

32 Report of the Committee of Privy Counsellors appointed to inquire into “D” notice matters (Chair: Lord Radcliffe) (Cmnd. 3309; 1967) (hereafter “D” notice matters); Report of the Committee of Privy Counsellors on Ministerial Memoirs (Chair: Lord Radcliffe) (Cmnd. 6386; 1976).

33 He owned originals by, among others, Renoir, Degas and Pissaro: see Heward, GAG, pp. 179–80.

34 See, e.g., C. Radcliffe, “Kipling and the World He Knew” The Listener (25 December 1947), p. 1107; “The Bloomsbury Cabinet” The Listener (21 March 1974), p. 376; “The Poor Relation at Trafalgar Square” The Listener (2 January 1956), p. 173 (reprinted at (1956) 56 Museums Jnl. 3); “Spoilation by Purse: The International Struggle for Art” Daily Telegraph (29 January 1959), p. 8. Radcliffe was particularly disgusted by the duplicity of Harold Wilson's first government when it ignored representations of British Museum trustees regarding the appropriate location for its new library: see Lord Radcliffe, “Decision on National Library: History of ‘Consultation’ ” (letter) The Times (31 October 1967), p. 11; HL Deb. (5th series) vol. 287 cols. 1130–41 (13 December 1967); Government by Contempt: A Speech in the House of Lords by Lord Radcliffe, with some Relevant Documents (London 1968); Cyril Radcliffe to Roy Harrod, 14 August 1968, Harrod papers, British Library, Add. MSS 71611 f. 190 (“I loathe and despise his [Wilson's] government which has debased and degraded my country”). This last assessment was probably prompted as much by the brouhaha over D-notices (see below) as by anything else.

35 See Heward, GAG, pp. 2, 62.

36 “Heaven defend us from the funny judge or the flippant judge or, for that matter, from the ‘with it’ judge. The last causes me the same sort of discomfort as those Prime Ministers who select public honours for popular entertainers.” Lord Radcliffe, “Foreword” in L. Blom-Cooper (ed.), The Language of the Law: An Anthology of Legal Prose (London 1965), ix-xv (hereafter “Foreword”) at p. xiv.

37 NFB, p. 79.

38 See, e.g., NFB, p. 238 (“‘Let the great world spin for ever Down the ringing grooves of change,’ said the poet Tennyson, excitable, neurotic, and gravely misunderstanding the principles of railway traction”).

39 On Bracken, see Cyril Radcliffe to Violet Bonham Carter, 12 September 1963, in Lady Violet Bonham Carter correspondence and papers, MS Bonham Carter 194 f. 2, Department of Special Collections, Bodleian Library, Oxford (“He was someone for whom I feel a very real love and I shall always miss him”); Lord Radcliffe, “Heart in the New Building” Financial Times (12 July 1963), p. 10. On Gulbenkian, see N. Gulbenkian, Pantaxaria (London 1965), pp. 245–7. Calouste Gulbenkian's will stipulated that the bulk of his fortune should be used to establish a charitable foundation in Portugal, and named Radcliffe as a trustee and as chairman. The other trustees disagreed with Radcliffe as to the intended benefit of the foundation: Radcliffe insisted that Gulbenkian's intention had been that although the foundation should be a Portuguese institution it should operate and apply its resources throughout the world, whereas the other trustees argued that the it was only to carry out its activities in and for the benefit of Portugal. See ibid. 260–82, 323–69. There was a stalemate, and consequently Radcliffe felt precluded (to his immense disappointment) from becoming chairman of the foundation: see Anon., “Gulbenkian Trustees: Lord Radcliffe Not to Accept Office” The Times (16 June 1956), p. 6.

40 R. Stevens, Law and Politics: The House of Lords as a Judicial Body, 1800–1976 (Chapel Hill, NC 1978) (hereafter Stevens, Law and Politics), pp. 445–59.

41 Stevens, Law and Politics, p. 454.

42 Lord Radcliffe, The Law & Its Compass (London 1960), p. 66 (hereafter LAC).

43 “Dissolving Society”, p. 59.

44 C. Radcliffe, “Russell of Killowen and the Idea of Law” The Listener (29 January 1948) 174–75 (hereafter “Russell of Killowen”) at p. 174.

45 See I. McLaine, Ministry of Morale: Home Front Morale and the Ministry of Information in World War II (London 1979), pp. 240–81.

46 Liversidge v. Anderson [1942] A.C. 206, 244–5.

47 “I only wanted to say how entirely I agreed with every line of your judgment and what a very valuable thing it was that you were there to deliver it. I know how widely the general public responded to the view you took, and I do privately hope that it is the one that will somehow prevail before things go much further.” Cyril Radcliffe to Lord Atkin, 19 November 1941, James Richard Atkin papers, ATK1/JUD/2/2/41, Gray's Inn Library, London.

48 See Nakkuda Ali v. Jayaratne [1951] A.C. 66 (P.C.), 76–7. For continuation on the path, see I.R.C. v. Rossminster [1980] A.C. 952, 1011 per Lord Diplock; R v. Home Secretary, ex p Khawaja [1984] A.C. 74, 110 per Lord Scarman; and T. Bingham, The Business of Judging: Selected Essays and Speeches (Oxford 2000), p. 22.

49 C. Radcliffe, “Sacco and Vanzetti” The Times (12 August 1927), p. 11.

50 See Rumping v. D.P.P. [1964] A.C. 814, 845–7.

51 Zacharia v. Republic of Cyprus [1963] A.C. 634, 664–76; Schtraks v. Israel [1964] A.C. 556, 585–92 (Radcliffe's argument in this instance being that the appellant had not committed a political offence).

52 See, e.g., Belfast Corporation v. O.D. Cars Ltd. [1960] A.C. 490, 522–3; Chertsey D.C. v. Mixnam's Properties Ltd. [1965] A.C. 735, 752–7.

53 HL Deb. (5th series) vol. 172 col. 1268 (25 July 1951).

54 See Warwick 14th April Report, paras. 41–67; also Philips, “Obituary”, 593 (“He was incensed at the growing tendency to deny free speech”).

55 See Warwick 14th April Report, paras. 29–31.

56 Though “[w]hen all that has been said, the decision must still lie with governments and no one else how much they are to make public and at what point of time they are to do so.” Lord Radcliffe, Freedom of Information: A Human Right (Glasgow 1953) (hereafter FOI), p. 19. In Security Procedures the committee concluded that positive vetting, though an important practice in the civil service, has inherent weaknesses which might be eradicated were the rules regarding vetting procedure made clearer: Security Procedures, paras. 60–78. One of the main findings of Vassall, which concerned the case of a homosexual admiralty clerk blackmailed into spying for Russia, was that positive vetting had been conducted only superficially: Vassall, paras. 82–4. (Radcliffe was called on to preside over Vassall in November 1962. Hedley Byrne v. Heller had just come before a House of Lords composed of Radcliffe and Lords MacDermott, Jenkins, Guest and Cohen, but Radcliffe's appointment, one of the then junior counsel for the respondents recalls, meant that the case had to be abandoned after the first day's hearing: Louis Blom-Cooper, letter to author, 10 June 2009. The case did not come back to the House until February 1963, when it was heard by a different panel: Hedley Byrne & Co Ltd. v. Heller & Partners Ltd. [1964] A.C. 465.)

57 “D” notice matters, para. 60.

58 The “D” Notice System: Presented to Parliament by the Prime Minister by Command of Her Majesty (Cmnd. 3312; 1967) (hereafter The “D” Notice System), paras. 22, 25.

59 R. Crossman, Diaries of a Cabinet Minister, Volume 2: Lord President of the Council and Leader of the House of Commons 1966–68 (London 1976), p. 381.

60 H. Noyes, “D notices White Paper savaged: Scathing attack by Lord Radcliffe” The Times (7 July 1967) 1.

61 HL Deb. (5th series) vol. 284 col. 778 (6 July 1967).

62 Ibid. col. 781.

63 Ibid. cols. 781–2.

64 Ibid. col. 778.

65 The “D” Notice System, para. 19.

66 HL Deb. (5th series) vol. 284 col. 783 (6 July 1967).

67 Ibid. col. 817 (Lord Goodman).

68 Ibid. col. 836 (Lord Chalfont).

69 Crossman, above note 59, pp. 413, 414.

70 See Lord Radcliffe, review of L. Blom-Cooper & G. Drewry, Final Appeal (1973) 36 M.L.R. 559 (hereafter “review of Final Appeal”), 564–5 (“[T]he judicial side … cannot take over any supreme supervisory role in all decision-making without raiding the legislative field on the one hand and the area of a large part of the country's practical business on the other. The filching of a jurisdiction that does not belong to one is no more admirable than any other act of theft”); LAC, pp. 80–4; also Radcliffe, “Some Reflections on Law and Lawyers” (1950) 10 C.L.J. 361, 361–2 (hereafter “Some Reflections”) (“[L]awyers are at heart anarchists, in that by training they believe all executive power to be evil”). For examples of Radcliffe's own deference in this regard, see Smith v. East Elloe R.D.C. [1956] A.C. 736, 766–70 (finding that a statute ousting the right to legal proceedings in compulsory purchase cases was not an abuse of power, notwithstanding an allegation that the power had been used in bad faith); Chandler v. D.P.P. [1964] A.C. 763, 792–99 (appellants' liberty to engage in non-violent civil disobedience denied because they intended to commit a criminal offence contrary to the Official Secrets Act 1911, s. 1); and Burmah Oil Co. Ltd. v. Lord Advocate [1965] A.C. 75, 134 (“[W]here war damage is concerned, … absence of … jurisdiction in the courts to award compensation is based on sound considerations of public policy …. [I]t is for those who fill and empty the public purse to decide when, by whom, on what conditions and within what limitations such compensation is to be made available”).

71 HL Deb. (5th series) vol. 284 col. 779 (6 July 1967).

72 Radcliffe, “Some Reflections”, pp. 365, 367.

73 “Law and Order”, p. 826. By the beginning of the 1970s he was, not surprisingly, claiming that the Labour Government had succumbed to the unions: “now industrial chaos and strikes are rampant” and “it will be interesting” – this was a fortnight before Harold Wilson's surprise defeat to the Conservatives under Edward Heath in the general election – “to see how far failure of achievement and palpable ineptitude … prove themselves a popular attraction to the electorate.” Lord Radcliffe, “Minority View” The Times (2 June 1970), p. 10.

74 Radcliffe, “Dissolving Society”, pp. 590, 591, 592, 590.

75 Lord Radcliffe, “Immigration and Settlement: Some General Considerations” (1969) 11 Race 35 (hereafter “Immigration and Settlement”) at p. 35.

76 “Immigration and Settlement”, p. 36.

77 Ibid. p. 37.

78 Ibid. p. 43.

79 Ibid. p. 44.

80 Ibid. Radcliffe did not characterize all immigrants' grievances thus. Immigrants could legitimately complain, for example, that they were often being treated unfairly by housing authorities: see ibid. 48–51.

81 Ibid. p. 39.

82 Ibid. p. 36.

83 Ibid. p. 45.

84 Ibid.

85 Ibid.

86 Ibid. p. 46.

87 Ibid. p. 48.

88 Ibid. p. 47.

89 Ibid. p. 48.

90 A. Lester, “The Broken Compass” (1969) 119 N.L.J. 443–45 at p. 443.

91 Though he cautioned against straightforward arguments in favour of equality of treatment. For example he admired Mountstuart Elphinstone, who served as Governor of Bombay from 1819–1827, because Elphinstone could see how the idea of equality before the law grated on the sensibilities of Indians who accepted caste ranking: see Lord Radcliffe, Mountstuart Elphinstone (Oxford 1962), p. 26.

92 See Lester, “The Broken Compass”, above note 90, pp. 443–4; also A. Lester and G. Bindman, Race and the Law in Great Britain (Cambridge, Mass 1972), pp. 92–3 (distinguishing “discriminating between” and “discriminating against”).

93 See Lester, “The Broken Compass”, above note 90, p. 444.

94 See E. Powell, Address to the Birmingham Conservative Association, 20 April 1968, at http://www.telegraph.co.uk/comment/3643823/Enoch-Powells-Rivers-of-Blood-speech.html (accessed 30 June 2009): “To be integrated into a population means to become for all practical purposes indistinguishable from its other members …. But to imagine that such a thing enters the heads of a great and growing majority of immigrants and their descendants is a ludicrous misconception, and a dangerous one … [W]e are seeing the growth of positive forces acting against integration, of vested interests in the preservation and sharpening of racial and religious differences, with a view to the exercise of actual domination, first over fellow-immigrants and then over the rest of the population.” It is perhaps not surprising that Lester should recall Radcliffe as a Powellite: Anthony Lester, email to author, 4 June 2009.

95 NFB, p. 241.

96 Stevens, Law and Politics, p. 455.

97 Ibid. p. 454.

98 N. Kaldor, The Scourge of Monetarism (Oxford 1982), p. 2.

99 Cyril Radcliffe to Roy Harrod, 27 July 1968, Harrod papers, British Library, Add. MSS 71611 f. 187.

100 NFB, pp. 260, 68, 231, 68–9; also LAC, pp. 92–3.

101 NFB, pp. 188, 224, 238, 71, 269.

102 NFB, p. 70.

103 Hennessy, Whitehall, pp. 566–7.

104 See, e.g., “Law and Order”, p. 823.

105 NFB, p. xviii.

106 Censors, p. 30.

107 See Censors, pp. 2, 32, 7–8 (citing Justice Holmes's dissent in the U.S. Supreme Court in Abrams v. U.S. 250 U.S. 616, 630 (1919)), 30.

108 “Soft drinks have backed a new play at the Royal Court Theatre, razor blades the Open Air Theatre in Regent's Park …. As a purist and a critic, I raise my eyebrows. As a lover of arts, … I am delighted at what is going on.” NFB, p. 123.

109 Lord Radcliffe, The Problem of Power: The Reith Memorial Lectures 1951 (London 1952) (hereafter POP), p. 4.

110 See, e.g., Radcliffe, “Some Reflections”, pp. 364–5 (“In this country law … has contributed much to the formation of national character …. To take one instance, … [the doctrine of freedom of] contract … is the way to teach men to think for themselves … a symbol of a great emancipation of the human spirit”). Not that Radcliffe was uncritical of laissez-faire. He thought it “a mistake for the courts to treat freedom of contract as if it were the master freedom overshadowing all others” and considered more desirable “a theory of contract … which starts from the necessity of a fundamental decency in private relations.” LAC, pp. 61, 63. The specifics of such a theory he did not develop, though he did advocate the “just and reasonable” in preference to the presumed common intention approach to frustration and other contracts problems: see Davis v. Fareham U.D.C. [1956] A.C. 696, 728; also Tsakiroglou v. Noblee Thorl [1962] A.C. 93, 122–3; Bridge v. Campbell [1962] A.C. 600, 622. He stopped short, nevertheless, of arguing that restitution for unjust enrichment ought to be a discrete category of obligations in English law: see Boissevain v. Weil [1950] A.C. 327, 340–1.

111 T.B. Macaulay, Life of Samuel Johnson (New York 1896), p. 67.

112 See Heward, GAG, p. 245.

113 NFB, pp. 215, 214, 73.

114 NFB, pp. xvi, 214.

115 NFB, p. 74.

116 See NFB, pp. 74, 213, 215, 274, 275–6.

117 NFB, pp. 276, 79.

118 NFB, pp. 215, 212.

119 NFB, p. 271.

120 Radcliffe, review of Final Appeal, p.563.

121 Lord Radcliffe, interview (conducted by Alan Paterson), 12 January 1973, Dep. C 955 f. 186, Department of Special Collections, Bodleian Library, Oxford. Cf. F. Pollock, “Judicial Caution and Valour” (1929) 45 L.Q.R. 293 and Candler v. Crane, Christmas & Co. [1951] 2 K.B. 164 (C.A.), 178 per Denning L.J. (“the timorous souls … were fearful of allowing a new cause of action. On the other side there were the bold spirits who were ready to allow it if justice so required. It was fortunate for the common law that the progressive view prevailed”) with Radcliffe, review of Final Appeal, p. 564 (“What we have here is romantic writing, and it can be useful only to fellow romantic spirits. The differences of point of view that are being alluded to are intellectual differences to which epithets of heroism and gallantry are comically inappropriate. It is, I think, a great pity that fustian like this is becoming so fashionable … ”).

122 Though Radcliffe did not quite eschew such language: see, e.g., “Law and Order”, p. 821; NFB, p. 271.

123 See NFB, pp. 27–8, 271–3; Workington Harbour and Dock Board v. Towerfield [1951] A.C. 112, 159 (“[T]here is nothing in the wording of [the Harbours, Docks and Piers Clauses Act 1874, s. 74] that would justify us reading into it … a qualification [to the effect that the shipowners were not to be answerable if the harbour authority could be convicted of contributory negligence]. If we did we should be amending the section, whereas our function is limited to construing it”); also Galloway v. Galloway [1956] A.C. 299, 322–3; Goodrich v. Paisner [1957] A.C. 65, 90 (it is not “open to the courts to make a law for themselves” where a “statute leaves it unresolved by what tests the question of degree is to be determined”). Though he appreciated that courts may have to interpolate faute de mieux where legislators have “concealed their intention with more than a Baconian obscurity” (I.R.C. v. Dowdall, O'Mahoney & Co. [1952] A.C. 401, 423; also, similarly, Langford Property Co. Ltd. v. Batten [1951] A.C. 223, 240–41); and he was no less wary of “statute-makers [trying] to do the judge's work for him in advance by regulating in detail what they cannot even dimly envisage” (“Law and Order”, p. 822). His approach to statutory interpretation depended on the clarity of the statute: cf., e.g., St. Aubyn v. A.G. [1952] A.C. 15, 52–3 (favouring purposive construction; see also LAC, pp. 52–4) with Welham v. D.P.P. [1961] A.C. 103, 123 (“the words … in the Act must be understood in the light of any established legal interpretation that prevailed at the date of the passing of the Act”); and see also Lord Radcliffe, Law and the Democratic State (Birmingham 1955) (hereafter LDS), p. 7.

124 NFB, p. 78.

125 LDS, pp. 17 and 16 respectively.

126 LAC, p. 56.

127 See Lister v. Romford Ice and Cold Storage Co. Ltd. [1957] A.C. 555, 592 per Lord Radcliffe (“Its movement may not be perceptible at any distinct point of time … ”).

128 See “Law and Order”, pp. 824–5.

129 Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234.

130 “Law and Order”, p. 821.

131 See Radcliffe, review of Final Appeal, p. 565 (on “the sheer undesirability of a second appeal, with the expense, uncertainty and delay that are its concomitant”). Gardiner had made the case in G. Gardiner and A. Martin, Law Reform Now (London 1963).

132 See “Law and Order”, p. 823; and A. Paterson, The Law Lords (London 1982), pp. 98, 185–6.

133 See NFB, p. 78. He considered the juristic argument that courts should “tidy [the law] up into a neater and more logical arrangement” (ibid. p. 32) to be “sterile” (31), because it ignores the fact that if the common law were made into “a coherent body … with coherent principles” (35), its “special quality”, its capacity to adapt while remaining largely unchanged, “would disappear” (32).

134 “Law and Order”, p. 822; and see also NFB, p. 8.

135 F. Pollock, A First Book of Jurisprudence for Students of the Common Law (London 1896), 239. Pollock's point being that precedents rarely offer up anything of the sort.

136 NFB, p. 216. As had happened, Radcliffe felt, with Rookes v. Barnard [1964] A.C. 1129: see NFB, p. 220.

137 See Lord Radcliffe, “The Place of Law Courts in a Society” The Listener (20 August 1953) 298–99 (hereafter “The Place of Law Courts”) at p. 299 (“It can only do good to encourage the courts … not to be over-reverent about precedents”); POP, p. xvi (“We shall not think aright if we take our thinking in the form of pre-digested food. It is no good following authority unless you have some comprehension of what it stands for”).

138 Radcliffe, Paterson interview, above note 121, f. 164.

139 NFB, p. 273.

140 See Caminer v. Northern & London Investment Trust Ltd. [1951] A.C. 88, 111–12; Esso Petroleum Co. v. Southport Corp. [1956] A.C. 218, 241.

141 “Law and Order”, p. 822; see also Heward, GAG, p. 72.

142 See Unit Construction Co. Ltd. v. Bullock [1960] A.C. 351, 368; also Sanderson v. I.R.C. [1956] A.C. 491, 500.

143 See Nash v. Tamplin & Sons [1952] A.C. 231, 256–8; I.R.C. v. F.S. Securities Ltd. [1965] A.C. 631, 653–4. In the 1950s, Radcliffe became something of an expert on tax matters – the Royal Commission's Taxation report appeared in June 1955 – so it is not surprising that his reasoning in taxation cases (which easily compose the majority of the cases on which he sat) should often be remarkably sophisticated and confident: in Independent Television Authority v. I.R.C. [1961] A.C. 427, 438–44 he observed that the Inland Revenue was apparently unaware of the fact that it was leaving various sources of stamp duty revenue untapped; in I.R.C. v. Frere [1965] A.C. 402, 429 he criticized the Revenue's system of extra-statutory tax concessions; in Rendel v. Went [1964] 1 W.L.R. 650, 658 he persuaded the House that the appeal was “hopeless”; and in I.R.C. v. Hinchy [1960] A.C. 748, 777 he berated Parliament for failing to undertake a review of tax penalties in line with, among other things, his own committee's recommendations in Taxation.

144 Radcliffe, Paterson interview, above note 121, ff. 164–5.

145 LDS, p. 5.

146 “Some Reflections”, p. 367.

147 Ibid. p. 366.

148 LDS, p. 5.

149 C. Radcliffe, “Thoughts on India as ‘the Page is Turned’ ” The Listener (2 October 1947) 557–58 at p. 558.

150 “The Place of Law Courts”, p. 298.

151 NFB, p. 272. See also LDS, pp. 8–9.

152 “The Place of Law Courts”, p. 298.

153 “Russell of Killowen”, p. 174.

154 “The Place of Law Courts”, p. 299; and see generally C.J. Radcliffe, “Trusts for or Powers of Sale in Relation to The Rule of Perpetuities” (1925) 41 L.Q.R. 52; also his observations, in British Transport Commission v. Westmorland C.C. [1958] A.C. 126, 152, on “[h]ow flickering is the illumination which the[] authorities throw upon the main principle of law” at stake in that case. The real “virtue” of the common law, Radcliffe argued, rests “in … its readiness to keep its nose to the grindstone” (“The Place of Law Courts”, p. 299), and in the fact “that it is always there … keeping a little, but only just a little, below the level of the people whose law it is” (“Russell of Killowen”, p. 174).

155 “I sometimes feel that we turn rather too easily down the by-ways that lead so pleasantly to park and manorhouse and old world cottages and the village green; and that there is something to be said for keeping to the ugly modern highway with its roaring traffic and its straight harsh lines.” LDS, p. 1. See also NFB, pp. 265–6.

156 See “Some Reflections”, p. 361 (“The daily life of the ordinary man today is regulated far less by anything that can be called the common law of the kingdom than at any period that can be studied in our history”).

157 “Some Reflections”, p. 366.

158 See NFB, p. 221.

159 LDS, p. 4.

160 NFB, pp. 239–40; and see also “Some Reflections”, p. 362.

161 “Some Reflections”, p. 366.

162 NFB, p. xi.

163 LDS, p. 9.

164 NFB, p. 231.

165 LDS, p. 9.

166 “Some Reflections”, p. 368.

167 NFB, p. 277.

168 NFB, pp. 219–20. See also “Some Reflections”, p. 364.

169 See, e.g., J. Raz, Practical Reason and Norms, 2nd ed. (Oxford 1999), pp. 35–48; H.L.A. Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford 1982), pp. 243–68.

170 “We badly need to develop a modern philosophy of authority for future use instead of just chanting the old choruses of rebellion”: Censors, p. 26.

171 See “Some Reflections”, pp. 365, 367–8: “ … what law is not, in essence, is the command of a ruler”, for “the sources upon which [the ruler's laws] draw for their hold upon men's conduct are painfully thin. They are force, … and they are loyalty to the [ruler] …. I do not think that a healthy legal system can be maintained indefinitely along those lines.”

172 LAC, p. 9.

173 LDS, p. 4.

174 Lord Radcliffe, “Power and the State” The Listener (8 November 1951) 771–2, 797 at p. 771. Cf. M. Oakeshott, “Political Power” The Spectator (4 April 1952) 451–2 at p. 452 (“It seems to him … that even very great power is not always abused … But … for every example of a great concentration of power not being abused, a hundred examples could be cited to the contrary”).

175 LAC, p. 12.

176 NFB, pp. 266, 268.

177 John Ritchie III to Cyril Radcliffe, 14 October 1958, in John Ritchie papers, Northwestern University Archives, series 17/23, box 46, folder 18, Pritzker Legal Research Center, Northwestern University School of Law, Chicago.

178 Cyril Radcliffe to John Ritchie, 29 October 1958, ibid. (“I have reconsidered my first feeling that … I would never be able to prepare anything worthy of the occasion. I have overcome it … ”).

179 Cyril Radcliffe to William Haley, 23 June [195?], in William John Haley correspondence, 1949–64, Churchill/Haley/8/8, Archives Centre, Churchill College, Cambridge. I am grateful to Matthew Kramer at Churchill College for helping me to track down this letter. It seems reasonable to infer from the dates of the accompanying correspondence in folder 8 that the letter was written some time between 1955 and 1959.

180 LAC, pp. 8, 95, 94.

181 LAC, p. 93. See also NFB, p. 276 (“ … finding in the law a reflection of living ideas about the realities of human conduct and the nature of the destiny of men”).

182 LAC, pp. 24, 53.

183 LAC, pp. 65, 76.

184 LAC, p. 71. See also NFB, pp. 81 (“There is really not much to be said for Law unless it is thought of as representing absolute standards of right and wrong, even at far remove”), 239 (“Laws … have a unique power of illuminating dramatically the structure which the individual can count upon for the building and development of his own life”), 226–7 (“escapism, a sort of Beatnik political philosophy … is unworthy of that larger spirit of earlier days when … liberty and freedom meant a positive claim to displace outside authority by the more arduous responsibility of ordering oneself”).

185 See, e.g., Lord Radcliffe, “The Individual and the State” The Listener (13 December 1951) 1017–19 at p. 1018; POP, p. 89; Censors, pp. 9–10; “Marked Lowering in Public Tone” The Times (25 February 1958), p. 9 (“It does very greatly matter that each individual should be free to form, hold, and honour his own belief as to the meaning of human life and its relationship to a spiritual universe that lies beyond it …. It does not matter at all that people should become more and more comfortable or that they should travel faster, or that they should visit more and more places. It is not of any supreme importance that anyone should be happy in any sense of that word which does not beg the question”).

186 W. Roper, The Life of Thomas More, rev. ed. (London 1822), p. 26; and see also NFB, epigram, p. 147; LAC, p. 85.

187 LAC, pp. 72, 85, 88.

188 For Radcliffe it is indeed the attitude of officials, rather than that of the “the ordinary citizen”, that is crucial: POP, p. 14.

189 See LAC, p. 96; also E. Burke, “Thoughts on the Cause of the Present Discontents” (1770) in E.J. Payne (ed.), Burke: Select Works, (Oxford 1922), vol. I, 1, 90 (“Publick life is a situation of power and energy; he trespasses against his duty who sleeps upon his watch, as well as he that goes over to the enemy”).

190 See NFB, pp. 267–8.

191 LDS, p. 4.

192 LDS, pp. 16–17.

193 See LAC, pp. 77–8.

194 POP, p. 5. See also Radcliffe, “Foreword”, p. xiii (“I envy the dignified certainties on moral or social issues, eloquent of the eighteenth century”).

195 FOI, p. 29. See also Radcliffe, “The Problem of Cyprus”, above note 29, p. 18 (“a well-educated and enlightened group of people … ”); “Law and Order”, p. 823 (“A trained man … ”); “Immigration and Settlement”, p. 36 (“men of good will”).

196 NFB, p. 69.

197 Censors, p. 4.

198 Lord Radcliffe, “Social Need for New Values” The Times (24 February 1958), p. 9.

199 Ibid.

200 Radcliffe, “Marked Lowering in Public Tone”, above note 185, p. 9.

201 H.L.A. Hart, “Purpose of Politics” (letter) The Times (1 March 1958), p. 7.

202 FOI, p. 13.

203 A fact which is borne out by one of the essays to which Hart was responding: see Radcliffe, “Marked Lowering in Public Tone”, note 185 above, 9 (“ … it can never be too early for people in this country to take stock of their beliefs and aspirations …. They still have the great opportunity … ”).

204 NFB, pp. 181, 7, 20, 226, 42.

205 NFB, p. 67; and see also “Law and Order”, 825 (“It is one of the great vulgarities of our current mass-communication society that it wants to sell all ideas and all beliefs as if they were merchandise that must be got off the shelves at all costs”).

206 See “The Place of Law Courts”, p. 299.

207 See FOI, pp. 13–14, 26.

208 NFB, p. 234.

209 FOI, p. 27.

210 “The Place of Law Courts”, p. 299. Note, though, that when Radcliffe felt aggrieved over inadequate public funding for the arts, life did not just have to “go on”; rather, “we must go on complaining of this until it is mended” (NFB, p. 41).

211 NFB, p. 42.

212 See Heward, GAG, pp. 10–11.

213 C[yril] J[ohn] R[adcliffe], Spring's Highway. Being Poems Written Between the Ages of 14 and 19 (London 1919) (herafter SH).

214 C.M. Bowra, Memories 1898–1939 (Cambridge, Mass 1967), p. 93. The praise counted for little. Bowra thought Radcliffe aloof and unemotional (see L. Mitchell, Maurice Bowra: A Life (Oxford 2009), pp. 58–9), while Radcliffe regarded Bowra as someone who never grew up (see ibid. pp. 170, 242).

215 See, e.g., “Sleep”, in SH, p. 10 (“We may sleep with the loved who are dead … ”); “After”, in SH, p. 18 (“For you, dear heart, the long day's task is done;/For us there's many a mile still left to run./But when this life below at length is o'er,/We know whose voice will greet us at the door.”).

216 “Amicis Emeritis”, in SH, p. 21. See also “In Memoriam”, in SH, p. 26 (“These, before the dawn had broken,/Gave their lives, O God, to Thee”).

217 “A Burial”, in SH, p. 41.

218 “Spring, 1916”, in SH, p. 45.

219 “Amico Dilecto”, in SH, p. 28.

220 “Melbury Moor”, in SH, p. 52.

221 “By the River”, in SH, p. 30.

222 “A Burial”, in SH, p. 42.

223 “Whom the Gods Love”, in SH, p. 46.

224 “The Stairway, 1918”, in SH, p. 49.

225 P. Hennessy, Never Again: Britain 1945–51 (London 1992), p. 236. The settlement continued to attract criticism long after Radcliffe's death. “The award of Cyril Radcliffe as announced on 17 August, 1947,” one commentator complained in the 1980s, “illegally and unjustifiably deprived Pakistan of a number of contiguous Muslim majority areas …. A great injustice was done to Pakistan by and under the Radcliffe award”. S.S. Pirzada, “Radcliffe Award, A Note” (1984) 36 All Pakistan Legal Decisions: Journal (Lahore) 35 at pp. 48–9, 57.

226 Lord Radcliffe, “1914: The First World War”, in The Haileyburian & Imperial Service College Chronicle (22 June 1962), pp. 58–9 at 58.

227 Ibid.

228 Ibid. p. 59.

229 FOI, p. 13.

230 NFB, pp. xvi-xvii.

231 NFB, p. xvii.

232 Lord Radcliffe, “Some Impressions of India” (1948) 15 Kipling Journal 5, 6.

233 O.W. Holmes to Frederick Pollock, 19 September 1919 in M. DeWolfe Howe (ed.), The Pollock-Holmes Letters: Correspondence of Sir Frederick Pollock and Mr Justice Holmes 1874–1932 (Cambridge 1942), vol. II, p. 25.

234 LAC, p. 84.

235 “Dissolving Society”, p. 591.

236 “Law and Order”, p. 825.

237 “People have lost the sense of tragedy in life that gives quality to action and thought. A sense of gravity is part of the makeup of society.” Radcliffe interviewed in Hennessy, “The Eternal Fireman”, above note 4, p. 16.