Hostname: page-component-cd9895bd7-jkksz Total loading time: 0 Render date: 2024-12-25T07:24:33.519Z Has data issue: false hasContentIssue false
  • English
  • Français

Judicial Free Speech versus Judicial Neutrality in Mid-Twentieth Century England: The Last Hurrah for the Ancien Regime?

Published online by Cambridge University Press:  18 August 2010

Gerry R. Rubin
Get access Rights & Permissions [Opens in a new window]

Extract

In mid-1950s Britain two significant events occurred in respect of the doctrine of judicial neutrality in that country. In the first, the Lord Chancellor of the day, Lord Simonds, had refused permission for the experienced and well-known senior judge advocate, Lord Russell of Liverpool, to publish his sensational history of Nazi war crimes, The Scourge of the Swastika, so long as he (Russell) continued to hold judicial office. For Simonds was insistent that the judiciary must keep their counsel on virtually any matter outside the courtroom, a view shared both by his immediate Labour government predecessor, Lord Jowitt, and by his Conservative government successor, Lord Kilmuir. After a public standoff when neither side would give way, the deadlock was broken when Russell, rather than risk being sacked for disobedience, chose to resign his judicial office to a fanfare of publicity in the press and duly published his book shortly thereafter. Moreover, what lent the Russell confrontation an added edge was not just Simonds's complaint that the book could be perceived as anti-German and, therefore, as political. It was that publication at that time could have a damaging effect upon Britain's policy of rehabilitating West Germany within the Western alliance.

Type
Articles
Information
Law and History Review , Volume 27 , Issue 2 , Summer 2009 , pp. 373 - 412
Copyright
Copyright © the Board of Trustees of the University of Illinois 1992

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. Lord Russell of Liverpool, The Scourge of the Swastika (London: Cassell & Co, 1954)Google Scholar.

2. See <www.unhchr.ch/html/menu3/b/h_comp50.htm>.

3. The terms “concept,” “precept,” “principle,” and even “political rhetoric” may be found in the literature. As to “convention,” Marshall has observed that a “concise enumeration of [conventions] is not easy to make since they shade off into what might be called ‘traditions,’ ‘principles,’ and ‘doctrines.’ (We might speak, for example, of … the principle … of judicial independence …).” SeeMarshall, Geoffrey, Constitutional Conventions (Oxford: Clarendon Press, 1986), 3Google Scholar. While throughout this paper we will refer to the principles of judicial neutrality and judicial independence, the former seems more apposite to this study.

4. The UN's Basic Principles state that, “The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.” The Constitutional Reform Act 2005, s. 3, covering England and Wales, now imposes a statutory duty on the government to maintain judicial independence.

5. In respect of financial bias, the classic authority isDimes v. Proprietors of Grand Junction Canal (1852), 3 HL LC 759 (judicial shareholding)Google Scholar. For the controversy over Lord Hoffman's connection with Amnesty International during the Pinochet arrest and extradition hearings, see R. v. Bow Street Magistrate, ex parte Pinochet Ugarte (No. 2) (2000), 1 A.C. 119Google Scholar. See alsoPorter v. Magill (2002), 2 A.C. 357Google Scholarand Locabail (UK) Ltd v. Bayfield Properties Ltd (2000), Q. B. 451Google Scholar. For discussion of recent controversies seeWoodhouse, Diana, “The Office of Lord Chancellor,” Public Law, (1998): 628–9Google Scholar; Malleson, Kate, The New Judiciary (London: Dartmouth Publishing, 1999), 50Google Scholar; and Styles, Scott Crichton, “Judicial Opinions and Judicial Impartiality,” Juridical Review, (2007): 293–314Google Scholar. For the thesis that the judiciary in Britain are inherently political when they adjudicate, see the classic work byGriffith, J. A. G., The Politics of the Judiciary, 5th ed. (London: Fontana Books, 1997)Google Scholar.

6. Following the Constitutional Reform Act 2005, the Secretary of State for Constitutional Affairs (the nonjudicialized Lord Chancellor wearing a different hat) appoints judges after recommendations from an independent committee. The old closed and secret system of “soundings” taken by the Lord Chancellor has been abandoned. Cf., new proposals in a Ministry of Justice consultation paper, The Governance of Britain: Judicial Appointments, Cm. 7210, October 2007. The paper scarcely touches upon provisions regarding the removal of judges.

7. Cf., whether particular religious beliefs might disqualify a judge from presiding over cases involving, say, abortion, the legality of switching off life-support machines, or dis crimination on grounds of religious belief. When Pope Pius XII was thought to have stated in 1949 that Roman Catholic judges could not grant civil divorces, Lord Chancellor Jowitt threatened to refuse to appoint more Catholics to the bench until clarification had been obtained that the remarks would not have that effect. SeeStevens, Robert, The Independence of the Judiciary: The View from the Lord Chancellor's Office (Oxford: Oxford University Press, 1993): 86–8Google Scholar.

8. For most of the period covered by this paper, there were no female judges.

9. See the House of Lords report at <www.publications.parliament.uk/pa/ld200607/ ldselect/ldconst/151/7012402.htm>.

10. His celebrated ruling in the High Trees case was delivered in 1947 before his elevation to the Court of Appeal the following year. See his own discussion of the case inDenning, Lord, The Discipline of Law (London: Butterworths, 1979): 203–5Google Scholar.

11. Note 9, above. For the expose of judicial autonomy see, for example, Griffith, Politics of the Judiciary, discussed inGee, Graham, “The Political Constitutionalism of J. A. G. Griffith,” Legal Studies, 28 (2008): 20–45CrossRefGoogle Scholar, and Harlow, Carol, “Disposing of Dicey: From Legal Autonomy to Constitutional Discourse?” Political Studies, 48 (2000): 356–69CrossRefGoogle Scholar.

12. A reference to a dissenting judgment of Lord Denning's in the Court of Appeal decision in Candler v. Crane, Christmas & Co. (1951), 2 K.B.164Google Scholarwhen he contrasted the competing approaches of his own judicial activism with the majority's judicial conservatism.

13. Heuston, R. F. V., The Lives of the Lord Chancellors, 1940–1970 (Oxford: Clarendon Press, 1987): 122Google Scholar. Denning's, dissenting judgment was eventually endorsed in Hedley, Byrne & Co. Ltd. v. Heller & Partners Ltd. (1964), A.C. 465Google Scholar.

14. Stevens, Robert, Law and Politics: The House of Lords as a Judicial Body, 1800–1976 (London: Weidenfeld & Nicolson, 1979): 340Google Scholar. Stevens adds that in at least two major rulingsJowitt, had indulged in an “excess of judicial legislation.” The first was the notorious ruling in Joyce v. Director of Public Prosecutions (1946), A.C. 347Google Scholar, extending the law of treason to those non-British citizens obtaining by false declaration a British passport. Thus was William Joyce, Lord Haw-Haw, sent to the gallows for treason, notwithstanding that he was technically an American. The second was a leading case on tax law,British Transport Commission v. Gourley (1956), A.C. 185Google Scholar.

15. Stevens, , Law and Politics, 341–54Google Scholar; Heuston, , The Lives, esp. 152–4Google Scholar.

16. A later Lord Chancellor, Lord Hailsham, would complain that, “The trouble with Tom Denning is that he is always remaking the law, and we shall never know where we are.” SeeRozenberg, Joshua, “Lord's Century: Denning at 100,” January 23, 1999, at <www.bbc.co.uk/1/hi/uk/260718.stm>>Google Scholar.

17. For his own sudden removal as Lord Chancellor in 1962, seeKilmuir, Lord, Political Adventure: The Memoirs of the Earl of Kilmuir (London: Weidenfeld & Nicolson, 1964): 323–4Google Scholar.

18. Moran, Lord, Winston Churchill: The Struggle for Survival, 1940–1965 (London: Sphere Books, 1966): 631, 637Google Scholar. Moran was Churchill's distinguished physician.

19. See Fyfe, David Maxwell, “The State, the Citizen and the Law,” Law Quarterly Review, 73 (1951): 172Google Scholar, cited in Stevens, , Law and Politics, 421nGoogle Scholar.

20. Ibid: 424. An approach based on “rugged simplicity” appealed to him. See London County Council v. Wilkins (1957), A.C. 362, at p. 370, cited in Ibid.

21. Heuston, , The Lives, 175Google Scholar. His rulings revealed no clear pattern though he occasionally welcomed judicial lawmaking as in the trade union case ofBonsor v. Musicians' Union (1956), A.C. 104Google Scholar. For a heavily criticized ruling by him on the mens rea for murder, seeDirector of Public Prosecutions v. Smith (1961), A.C. 290Google Scholar.

22. The 1934 Act was subsequently replaced by the Courts Act 1971, s. 17(4). For earlier periods seePolden, Patrick, A History of the County Court, 1847–1971 (Cambridge: Cambridge University Press, 1999): 261–3CrossRefGoogle Scholar. The absence of a procedure for investigating and removal was rectified in the Constitutional Reform Act 2005, s. 108. For magistrates the provisions were contained in the Justices of the Peace Act 1948.

23. The provision is now contained in the Supreme Court Act 1981, s. 11(3).

24. See [National Archives, Kew, London] LCO2/5911, “Views of Text Book Writers as to the Possibility of Removal of Judges by the Crown for Misconduct in Addition to Removal on Address by both Houses,” no date, c. September 1953. Doubts on the matter have almost certainly been removed by virtue of the judicial independence provision in the Constitutional Reform Act 2005, s.3. See note 4, above.

25. As a result of the Constitutional Reform Act 2005, the Lord Chancellor, as noted, no longer holds judicial office nor is head of the judiciary in England and Wales. The Lord Chief Justice now assumes these responsibilities as President of the Courts. As a member of the government, the Lord Chancellor as head of the Ministry of Justice is now responsible both for the administration of the courts and for ensuring that the infrastructure exists to enable the judiciary to fulfil their roles appropriately.

26. The possibility that prior to the 2005 Act the dismissal by the Lord Chancellor of an inferior judge on grounds of misbehavior would have been procedurally flawed was recognized by Lord Chancellor Hailsham. SeeHailsham, Lord, A Sparrow's Nest: The Memoirs of Lord Hailsham of Marylebone (London: Collins, 1990): 430Google Scholar. His suggested remedy, involving the creation of a disciplinary committee composed of fellow judges, was apparently rejected. Cf., Article 6 of the European Convention on Human Rights (ECHR) that guarantees trial by an independent and impartial tribunal. The convention is now incorporated into domestic law under the Human Rights Act 1998.

27. Unless otherwise noted the following is taken from the correspondence in LCO4/273.

28. [Copy in] FO371/109733, Coldstream to Russell, August 4, 1954. The letter was cited in theDaily Express, August 11, 1954Google Scholar, and was presumably passed by Russell to the newspaper's defense and security journalist, Chapman Pincher. He and Russell were friends and neighbors. At the time there were delicate political discussions over German inclusion within a “European Defence Community” (EDC), a defensive alliance against the Soviet bloc. The EDC was especially favored by the Americans, while the French and British positions on the issue were complicated. The idea was stillborn at the end of August 1954, though hardly because of the publication of The Scourge of the Swastika. There was a clear hint in the letter that if publication went ahead, Russell would face dismissal for misconduct. Inevitably Russell contested the points regarding expressions of opinion. See his resignation letter in LCO4/273, Russell to Simonds, August 8, 1954. Russell's autobiography also contains a repudiation of Simonds's complaint. SeeRussell, Lord of Liverpool, That Reminds Me (London: Cassell, 1959): 218–20Google Scholar.

29. Cf., the Cabinet Secretary, Sir Edward Bridges's, suggestion that the prohibition on publication by public officials (and by judicial officers) should relate only to “political” and not to “public” controversy (a distinction which Simonds might not have shared). However, for Bridges, the latter meant cricket and the like! See LCO4/273, Bridges to Coldstream, October 14, 1954. For Commons exchanges on the Russell affair see House of Commons Debates [henceforth H.C. Deb.], October 19, 1954, cols. 1029–30, and October 25, col. 211.

30. See, for example, Daily Mail, August 11, 1954Google Scholar; Daily Herald, August 11, 1954Google Scholar; Daily Express, August 11, 1954Google Scholar.

31. Star, August 11, 1954Google Scholar.

32. Observer, August 15, 1954Google Scholar; Manchester Guardian, August 19, 1954Google Scholar.

33. A copy of the rules and comment thereon byBradley, A. W. is in Public Law (1986): 383–6Google Scholar, and inBrazier, Rodney, Constitutional Texts (Oxford: Clarendon Press, 1990): 596Google Scholar. The release of the letter does not appear to have been discussed in parliament or in the legal press at the time and is not referred to in Kilmuir's autobiography, above. No departmental documentation in the LCO class at the National Archives dealing with the release of the rules has been discovered.

34. In 1989 a Crown Court judge who had been highly critical of the Kilmuir rules and who frequently clashed with Lord Mackay even after their abolition explained to the media why he had sentenced a witness to seven days imprisonment for contempt of court after she had refused to testify against her ex-boyfriend, charged with assaulting her. See His Honour JudgePickles, , Judge for Yourself (London: Coronet, 1992): 154–55, 260–1Google Scholar. See also Ibid., 243–50 reproducing a critical newspaper article he wrote on the Kilmuir rules.

35. Assuming that these were among the judges to be discussed.

36. Denning, Lord Justice, “Reform of Equity,” in Law Reform and Law Making: A Reprint of a Series of Broadcast Talks (Cambridge: W. Heffer & Sons, 1953): 31Google Scholar.

37. Three academic members of the Law Reform Committee created by Jowitt, Professor E. C. S. Wade of Birmingham University, Professor A. L. Goodhart of Oxford University, and R. E. Megarry (Inns of Court), were permitted by Simonds to participate in a BBC radio programme in 1952 on topics not specifically earmarked for investigation by the committee. See LCO2/5404. On the future Megarry, J., see below.

38. LCO33/76.

39. The departmental file shows that the actual words used were reported differently in different newspapers. The gist remained the same. Perhaps the most damning, according to the Lord Chancellor, was a newspaper report of the magistrate having declared, “If we are going to get legislation of that sort, I am not going to play ball.” This of course was taken by Jowitt to mean that the lay judge, Colonel Davies-Evans, was refusing to enforce the Act, which was different from criticizing it and imposing a token fine.

40. H. C. Deb., March 14, 1949, col. 1727–9. When the matter was later debated in the Commons, the Attorney-General, Sir Hartley Shawcross, sought to explain that the Lord Chancellor would not dismiss a magistrate merely because he or she had made an honest mistake or had exercised discretion in a wrong or foolish manner. Nor would he dismiss a justice on account of some isolated intemperate criticism of the policy underlying a statute. However, if that dislike were to influence the magistrate's administration of the Act then that went to the root of the functions of the magistracy and removal would be in order. See H. C. Deb., May 16, 1949, col. 221 et seq. See alsoLaw Times 207 (May 27, 1949): 303–4Google Scholar

41. LCO33/76, Hogg to Jowitt, March 7, 1949.

42. Daily Graphic and Daily Sketch, February 26, 1949Google Scholar.

43. As the Justice of the Peace periodical noted, “… it is [a magistrate's] right, if not his duty, to follow the example of the superior courts in criticizing legislative enactments he has to enforce, where these, in his opinion, are inappropriate either to the offence or to the offender.” This was not of course a call for the refusal to enforce bad laws. SeeJustice of the Peace, 113 (March 5, 1949): 153Google Scholar.

44. Stevens, , The Independence of the Judiciary, 90Google Scholar.

45. Polden, Pat, “Judicial Independence and Executive Responsibilities: The Lord Chancellor's Department and the County Court Judges, Part II: Executive Influence on Judicial Behaviour,” Anglo-American Law Review 25 (1996): 138–40Google Scholar. The County Courts Act 1919 permitted the Lord Chancellor to extend a judge's period in office for a further three years after reaching the then retirement age of 72 if this was in the public interest. Simonds construed the “public interest” only in a judicial, not in a governmental, sense.

46. Simonds himself, in his judicial capacity, is strongly associated with the famous (or notorious) judgment in the“Ladies Directory” case, Shaw v. Director of Public Prosecutions (1962), A.C. 220Google Scholar, whereby the House of Lords created a new offence of conspiracy to corrupt public morals. Simonds proclaimed it the duty of the criminal courts to guard the moral welfare of the state.

47. The Times, March 14, 1950Google Scholar; H. L. Deb., Vol. 166, March 14, 1950, cols. 190–1; H. C. Deb., Vol. 472, March 16, 1950, cols. 1222–4;Law Journal 100 (March 24, 1950): 160Google Scholar. The judge declared, “I do not know, nor am I particularly concerned, whether statistics of crimes of violence throughout the country have decreased or not since the abolition of corporal punishment in September 1948, but as one of those who has perhaps only too much experience of the administration of the criminal law, I do know that the degree of violence in these cases, whether against women or men, old or young, is more brutal and cruel now than it ever was.” Jowitt, in the Lords debate (above), confessed he did not follow Streatfeild's distinction between facts and statistics.

48. For this and subsequent discussion, seeBresler, Fenton, Lord Goddard (London: Harrap, 1977): 225–34Google Scholar; also Smith, Arthur, Lord Goddard: My Years with the Lord Chief Justice (London: Weidenfeld & Nicolson, 1959)Google Scholar.

49. Bresler, , Lord Goddard, 229–30Google Scholar. For a recent reference see theGuardian, May 22, 2002 (supplement)Google Scholar.

50. As a cross-bencher in the House of Lords, Goddard was free to participate in parliamentary debates and did, indeed, forcefully contribute to the debate on the issue in October 1952. In February 1953 the Commons strongly voted against a private member's bill to restore corporal punishment, which apparently terminated his public utterances on the subject.

51. LCO2/5923; Stevens, , Independence of the Judiciary, 90Google Scholar. The lengthy letter appeared in The Times, May 11, 1954Google Scholar. In fact the phrase, “a deplorable incursion by a High Court Judge into the realm of controversial politics” was Hailsham's. The latter had complained to Simonds shortly after Lloyd-Jacob's letter had been published, and the Lord Chancellor had simply borrowed the passage. See LCO2/5923, Hailsham to Simonds, May 14, 1954. See also LCO2/5923, Lloyd-Jacob to Simonds, May 19, 1954.

52. Whether it was this incident which stopped Lloyd-Jacob's promotion to the Court of Appeal and beyond is unclear. He was still chairing commissions of inquiry after 1954 (on monopolies policy and on the ecclesiastical courts) but had offered to resign from the bench in 1956 (as he had done in 1952) to join a foundation. See LCO2/6355, LCO2/5159, and LCO2/5160. For the public expression of opposition by a magistrate in Cornwall in 1957 to Britain's nuclear test policy, similar in some ways to Lloyd-Jacob's position, but which did not lead to dismissal or to disciplinary action, see LCO33/83. Numerous instances of magisterial misconduct can be found in the departmental papers.

53. It was not unknown for judges, while still sitting on the bench, to publish their collected speeches on various legal and nonlegal topics. See, for example,Hewart, Lord, Essays and Observations (London: Cassell, 1930)Google Scholar, and his later collection, Not Without Prejudice (London: Hutchinson, 1937)Google Scholar. Hewart was a long-serving and controversial Lord Chief Justice. See below.

54. That is, the judicial House of Lords wearing its other hat as the appeal court from Commonwealth jurisdictions. SeeThe Times, July 21, 28, 1955Google Scholar. Radcliffe, himself published The Problem of Power (Reith Lectures, 1951) andGoogle ScholarThe Law and Its Compass (Rosenthal Foundation Lectures, 1960) while still serving on the benchGoogle Scholar.

55. Devlin, Patrick, The Enforcement of Morals (Oxford: Oxford University Press, 1965)Google Scholar. For brief discussion of the debate seeSelf, Helen J., Prostitution, Women and Misuse of the Law: The Fallen Daughters of Eve (London: Frank Cass, 2003): 189–94Google Scholar.

56. Various editions of works published under his name subsequently appeared, though it is fair to point out that the period in question was after that of Simonds and Kilmuir.

57. Hewart, Lord, The New Despotism (London: Ernest Benn & Co., 1929)Google Scholar.

58. Jackson, Robert, The Chief: The Biography of Gordon Hewart, Lord Chief Justice of England, 1922–40 (London: George G. Harrap & Co. Ltd., 1960): 216Google Scholar. For the “bureaucratic triumph” of the Donoughmore report, seeSimpson, A. W. Brian, In the Highest Degree Odious: Detention Without Trial in Wartime Britain (Oxford: Clarendon Press, 1992): 59Google Scholar.

59. Brazier, Rodney, Constitutional Practice, 2nd edition (Oxford: Clarendon Press, 1994): 283Google Scholar.

60. Jackson, , The Chief, 214Google Scholar.

61. LCO4/273, Boggis-Rolfe to MacGeagh, December 6, 1951. Boggis-Rolfe was the department's establishment officer.

62. This office holder generally disposed of issues, such as costs and other applications, in chambers.

63. The LCO permanent secretary, Sir Albert Napier, had forbidden his own staff from contributing articles to law journals and magazines.

64. The recruitment by the executive of members of the judiciary in order to undertake, sometimes in public, inquiries of a highly political and sensitive nature is not examined in this paper. It may be noted, however, that such practice, while not perceived as a breach of the principle of judicial independence, nonetheless may present the “danger that the process itself will be seen as political and that the judges will be perceived as instruments of the executive, thereby casting doubt on their independence.” SeeWoodhouse, Diana, The Office of the Lord Chancellor (Oxford: Hart Publishing, 2001): 33Google Scholar. A number of the judges cited in this study, including Lords Goddard and Radcliffe, presided over such inquiries. Problems may arise where the judge's report is widely seen as a whitewash of the executive or as covering up other dark secrets. Denning's Profumo inquiry in 1963 and the inquiry into the “Bloody Sunday” shootings in Londonderry in 1972 conducted by Lord Chief Justice Widgery are among the most “notorious” examples. One of the post-Iraq war inquiries in the United Kingdom, presided over by Lord Hutton, has been heavily criticized.

65. TheRt. Hon. Simonds, Lord, “Liberty Within the Law: The Lord High Chancellor's Address,” American Bar Association Journal 38 (1953): 1060–2; 1114–17Google Scholar.

66. Hyde, H. Montgomery, Norman Birkett: The Life of Lord Birkett of Ulverston (London: Hamish Hamilton, 1964): 554, 551Google Scholar.

67. FO371/103552, note by I. C. Alexander, June 30, 1953. He was also furnished with a copy of Maxwell Fyfe's [that is, Kilmuir's] “excellent speech to the Association of American Correspondents” as well as a briefing from the Foreign Office's anti-communist propaganda unit, the Information Research Department.

68. Thus while he had agreed to speak to the Society of Public Teachers of Law conference in Belfast in September 1957 on the subject of law reform, it was clearly not improper for Lord Chancellor Kilmuir also to address a “Young Ulster Group” during the same visit on “the dangers of Socialism.” SeeBelfast Newsletter, September 19, 1957Google Scholar; The Times, September 20, 1957Google Scholar; LCO2/5689.

69. His judgment in the “Ladies Directory” case can, however, be cited as an instance of repressive judicial law making. See note 46, above.

70. It probably concerned the case of Captain G. S. L. Griffiths who faced two courts martial in quick succession between 1953 and 1954 on charges of murder and cruelty in respect of alleged Mau Mau detainees. Coincidentally, Russell was judge advocate during Griffiths's second trial in Nairobi. SeeRubin, G. R., Murder, Mutiny and the Military: British Court Martial Cases, 1940–1966 (London: Francis Boutle Publishers, 2005): 279–94Google Scholar.

71. CAB128/27, CC.4(54)7, January 21, 1954.

72. CAB129/65, C.(54)27, January 25, 1954, “The Attorney-General and Public Prosecutions,” January 25, 1954.

73. The author added that the “intervention of the Lord Chancellor, with respect to an office he had never occupied, was extraordinary.” SeeEdwards, John Ll. J., The Attorney-General, Politics and the Public Interest (London: Sweet & Maxwell, 1984): 322nGoogle Scholar.

74. For the correspondence between Simonds and Heald in respect of the issue, see LCO2/5106.

75. LCO2/5911.

76. The timing is partly ironic given that the events occurred shortly after the United Kingdom had been in the forefront of the drafting of the ECHR, an international treaty that it ratified in March 1951. SeeSimpson, A. W. Brian, Human Rights and the End of Empire (Oxford, Oxford University Press, 2001)Google Scholar. There was no right of individual petition until 1966. For its later incorporation into domestic British law, see note 26, above.

77. See Denning, Lord Justice, “The Independence of the Judges,” Holdsworth Club Presidential Lecture, Birmingham University, June 16, 1950, 1Google Scholar.

78. For the difficult relationship between Simonds and Denning, seeHeuston, , The Lives, 152–4Google Scholar. Drawing an analogy with a previous unfortunate Master of the Rolls, Thomas Cromwell, who had been beheaded during the reign of Henry VIII, Denning later admitted having been verbally beheaded by Simonds. SeeDenning, Lord, The Family Story (London: Butterworths, 1981): 202Google Scholar.

79. Like the Holdsworth lectures the Hamlyn lectures continue as a most distinguished series to this day.

80. LCO2/4617, Jowitt to Denning, December 7, 1949.

81. Ibid., Denning to Jowitt, December 12, 1949.

82. See Malleson, , The New Judiciary, 2Google Scholarfor this description.

83. Ibid., 233.

84. See note 25, above, for the current role of the Lord Chancellor.

85. See note 9, above. His view regarding the approval of the judges for abolition of the rules contrasts with Hailsham's claim that the overwhelming majority of the judges during the latter's second tenure as Lord Chancellor (1979–87) wished to retain the rules. See Hailsham, , A Sparrow's Flight, 431Google Scholar.

86. Lord Woolf, “Should the Media and the Judiciary be on Speaking Terms?” at <www.dca.gov.uk/judicial/speeches/lcj221003.htm>, at 8 of 9. It is likely that he was referring to Judge Pickles. See note 34. See alsoPickles, Judge James, Straight from the Bench: Is Justice Just? (London: Coronet Books, 1988)Google Scholar. After various exchanges with Mackay, Pickles retired in 1991.

87. For suggestions as to the origins of the judicial review shifts from the 1960s see Lord Greene M. R.'s doctrine, formulated in 1948, of (unlawful)“unreasonableness” on the part of a public authority in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation, (1948), 1 K.B. 223, at 229Google Scholar. The judiciary's shift in the direction of a more protective role towards the citizen vis-à-vis the executive has also been traced to the political fall-out from a celebrated controversy, the Crichel Down affair (1954), involving a culpable failure by a government department to restore requisitioned land to its owners after the war. Thus it has been suggested that the affair, which also led to the minister's resignation, caused a loss of judicial confidence in public administration, prompting the judiciary to assume a more interventionist approach towards administrative law in order to protect the citizen. SeeWoodhouse, Diana, “Review Article [of Robert Stevens, The English Judges: Their Role in the Changing Constitution (Oxford, Hart Publishing, 2002)],” Modern Law Review 66 (2003): 928Google Scholar, citing Sir Sedley, Stephen, “The Sound of Silence: Constitutional Law With-out a Constitution,” Law Quarterly Review 110 (1994): 271Google Scholar. See also Nicholson, I. F., The Mystery of Crichel Down (Oxford: Oxford University Press, 1986)Google Scholar. The real breakthrough in administrative law is generally recognized as being the case of Ridge v. Baldwin (1964), A.C. 40Google Scholar, concerning the dismissal of the Chief Constable of Brighton, and decided ten years after Crichel Down.

88. For Jennings, “It is democracy and not merely the separation of powers that keeps Britain free…. Still less must it be assumed that it is possible to distinguish by analysis ‘legislative’, ‘executive’, and ‘judicial’ powers. Montesquieu made no nice distinctions, and none of his successors has been successful in drawing them. It is accepted by a large body of expert opinion that they cannot be drawn…. There is no single characteristic or group of characteristics which enables the legislature to determine out of hand that a particular function should be assigned to judges or, in other words, which distinguishes the ‘judicial’ class of functions.” See Sir Ivor Jennings, The Law and the Constitution, 3rd ed. (London: University of London Press, 1943): 24. For Allen, “We shall not expect, then, to find the elegance of consistency or the precision of dogma in our distribution of governmental functions…. [T]he picture has often been confused by attempts to read into our constitution a rigidity of design which from its very nature it could never have possessed.” SeeAllen, C. K., Law and Orders: An Inquiry into the Nature and Scope of Delegated Legislation and Executive Powers in English Law, 3rd ed. (London: Stevens & Sons, 1965): 5Google Scholar.

89. Dicey, A. V., Law of the Constitution, 10th ed. (London: Macmillan, 1959)Google Scholar. With particular reference to public law, the theory assumes that the judiciary eschew the development of administrative law remedies as a device to ensure “fairness,” let alone sanction the creation of a formal system of droit administratif.

90. See note 11, above.

91. As it was peculiarly practiced in Britain, most notably where government ministers (the executive) were also members of the legislature. The even more anomalous position, until recently, of the Lord Chancellor, has previously been noted.

92. Cf., Devlin, Patrick, “The Judge as Lawmaker,” in The Judge, ed. Devlin, Patrick (Oxford: Oxford University Press, 1979), 1–17Google Scholar, where Devlin expresses qualified support for a limited form of judicial activism.

93. Authority for these broad statements can be found in various sources includingBlom-Cooper, Louis and Drewry, Gavin, Final Appeal: A Study of the House of Lords in its Judicial Capacity (Oxford: Clarendon Press, 1972)Google Scholar; Stevens, Law and Politics;Paterson, Alan, The Law Lords (Macmillan, 1982)CrossRefGoogle Scholar. For recent developments seeRobertson, David, Judicial Discretion in the House of Lords (Oxford: Clarendon Press, 1998)Google Scholar.

94. Blom-Cooper, and Drewry, , Final Appeal, 12–13Google Scholar.

95. Ibid., 13.

96. A celebrated statement to an academic audience in 1972 is from Lord Reid. “There was a time when it was thought almost indecent to suggest that judges make law-they only declare it. Those with a taste for fairy tales seem to have thought that in some Aladdin's case there is hidden the Common Law in all its splendour and that on a judge's appointment there descends on him knowledge of the magic words Open Sesame. Bad decisions are given when the judge had muddled the password and the wrong door opens. But we do not believe in fairy tales any more.” Cited inStevens, , Law and Politics, 621Google Scholar; also in Malleson, , The New Judiciary, 50Google Scholar.

97. Of course Lord Denning had been doing this from the late 1940s, no doubt commencing with his High Trees judgment. See note 10, above.

98. Formative cases were Ridge v. Baldwin (1964), A.C. 40 (noted previously)Google Scholar; Padfield v. Minister for Agriculture (1968), A.C. 997Google Scholar; and Anisminic Ltd v. Foreign Compensation Commission (1969), 2 A.C. 147Google Scholar. The term “Crown privilege” in Duncan v. Cammell, Laird & Co. Ltd (1942), A.C. 624Google Scholargave way to “public interest immunity” by the time of Conway v. Rimmer (1968), A.C. 980Google Scholar.

99. The litigant-friendly procedural changes approved inO'Reilly v. Mackman (1983), 2 A.C. 237 were criticalGoogle Scholar. See also Council of Civil Service Unions v. Minister for the Civil Service (1985), A.C. 374Google Scholar.

100. See Stevens, Robert, “A Loss of Innocence? Judicial Independence and the Separation of Powers,” Oxford Journal of Legal Studies 19 (1999): 393CrossRefGoogle Scholar. Cf., Nolan, Lord, cited in Malleson, , The New Judiciary, 19Google Scholar.

101. An exploration of those changing aspects of postwar British social history potentially influencing the doctrinal changes noted above is outside the scope of this paper. However it would presumably seek to ask whether the United Kingdom has become a more open, diverse, egalitarian, and liberal society from the 1960s in place of an alleged class-based, stifling, traditionalist, authoritarian, repressed, ingratiatingly deferential, and indeed conscripted era just emerging from the greyness of the Second World War. Alternatively such an investigation might ask whether the 1950s in Britain were a golden age of innocence, community, loyalty, respect, and family values which could be said to contrast sharply with today's allegedly brash, hedonistic, and disordered British society lacking a moral compass and of a sense of value and identity. Recent studies includeHennessy, Peter, Having It So Good: Britain in the Fifties (Harmondsworth: Penguin Books, 2007)Google Scholar; Sandbrook, Dominic, Never Had It So Good (London: Little, Brown, 2005)Google Scholar; and Sandbrook, Dominic, White Heat: A History of Britain in the Swinging Sixties (London: Little, Brown, 2006)Google Scholar.

102. Research on the most recent judicial appointments in 2007 seems to support this view. See Guardian, January 28, 2008Google Scholar.

103. Kennedy, Helena, Just Law (London: Chatto & Windus, 2004): 140Google ScholarPubMed.

104. Predictably, Denning led the way for this “new wave” when delivering his combative Dimbleby Lecture in 1980 on the “Misuse of Power.” He insisted that ultimate control of government should not rest with parliament but with the judiciary, armed with power to set aside “unconstitutional” laws.

105. There were glimpses of such a human rights discourse on the part of international lawyers during and in the immediate aftermath of the Nazi defeat.

106. Morrison, John, Reforming Britain: New Labour, New Constitution? (London: Reuters, 2001): 373Google Scholar. As Stevens has noted, “The bench [in the 1950s] surely contained its share of scholarly, fair, and decent men. It also had more than its share of cantankerous, prejudiced, intimidating, and boorish judges…. [They] were, with rare exceptions, accustomed to deference and sycophancy…. [By contrast] England today has a remarkably competent judiciary, marked by a bench the overwhelming majority of whose members are gracious, scholarly, imaginative, and fair compared with the 1950s.” See Stevens, , The English Judges, 37–8Google Scholar.

107. Both cited in The Hon. John Doyle, Chief Justice of South Australia, “The Well- Tuned Cymbal,” address to the Australian Judicial Conference, Canberra, November 2, 1996, at <www.judcom.nsw.gov.au/fb/fbdoyle.htm>. In fact it was Lord Denning who had previously referred toBacon's, “over-speaking judge as no well-tuned cymbal,” in Jones v. National Coal Board (1957), 2 Q.B. 55Google Scholar.

108. See note 9, above. Paradoxically, judicial liberation in respect of free speech has been accompanied by increased judicial accountability in recent years in terms of professionalized standards of performance appraisal, wider media scrutiny, and, most recently, the creation of an independent Judicial Appointments and Conduct Ombudsman who can make recommendations in respect of complaints about judicial conduct. Although the Lord Chancellor has been replaced as head of the judiciary by the Lord Chief Justice (the latter now appointed as President of the Courts of England and Wales), he still technically retains power to remove inferior judges in accordance with the procedures (including proper investigation) laid down in the Judicial Discipline (Prescribed Procedures) Regulations 2006, issued under the Constitutional Reform Act 2005, s. 108, and subject to the approval of the Lord Chief Justice to such removal. Following abolition of the Kilmuir rules, the department not only sought to advise the judiciary, especially the inferior judges, on how to deal with the media. It attempted in 1991, according to one legal journalist, to dictate when the judiciary could talk to the press including, in some cases, to the Lord Chancellor's own press office. SeeRozenberg, Joshua, Trial of Strength: The Battle Between Ministers and Judges Over Who Makes the Law (London: Richard Cohen Books, 1997): 50–1Google Scholar. Whether the instruction from the department was effective is a moot point.

109. Marshall, , Constitutional Conventions, 211Google Scholar.

110. Woodhouse, , “Review Article,” 920Google Scholar.

111. Ibid.

112. Of course serving judges had in the past published “historical works.” They included Lord Campbell (1779–1861) who published the third volume of his Lives of the Chief Justices in 1857 when he himself was Lord Chief Justice. In 1929 Sir Ernest Pollock (Lord Hanworth) published, while still Master of the Rolls, a biography of his grandfather, Chief Baron Pollock.