Law unto ourselves

It is not usually thought to be the job of judges to “make” modern Britain. Judicial decisions are reactive. They respond to the historic facts of the case in hand and to established legal instincts and principles. They reflect social and moral values ​​that already exist and social changes that have already happened. The transformative legal changes of the postwar years have almost invariably been statutory: abortion, licensing, non-discrimination and equal opportunities, trade unions and cartels, consumer protection, human rights, same-sex relationships, divorce and child protection, pollution and food standards , development and much more.

Inigo Bing has written an enjoyable book about ten cases decided by the courts between 1941 and 2019. It is directed at general readers who are interested in recent developments in the law without necessarily being specialists, and it serves them well. It is written with verve, style and an eye for colorful detail and eccentric personalities. It describes the legal background in clear and approachable terms. It makes some shrewd points about the process of judicial decision-making. But to say that these cases made modern Britain, indeed that they are the Cases that did so, is an ambitious claim that may not persuade every reader.

Take the second of Bing’s ten cases, the trial of Penguin Books at the Old Bailey in 1960 for publishing an obscene book, Lady Chatterley’s Lover. The case was a colorful exhibition of old and new prejudices. Senior prosecuting counsel famously asked the jury whether it was a book that they would want their wives or servants to read. Thirty-eight experts, professors of literature, authors, editors, critics, publishers, educationalists and clergymen, including eight women, trooped into the witness box to give evidence of the excellence of D. H. Lawrence’s novel of adultery across class divides. The jury acquitted the publisher. The case is widely credited with transforming British attitudes to sex and opening the door to the Swinging Sixties. Bing seems to accept this view. But did it really?

The sale of obscene publications had been a common-law offence since the eighteenth century. The common law was superseded by the Obscene Publications Act 1857, a statute promoted by the then chief justice, Lord Campbell, on the ground that pornography was “more deadly than prussic acid, strychnine or arsenic”. Most English people probably agreed with that view in 1857, but they had ceased to do so well before the Lady Chatterley prosecution. In 1959 a new Obscene Publications Act replaced the old one. It required prosecutors to prove that the publication taken as a whole had a “tendency to deprave or corrupt” those who were likely to read it. It also created a public interest defence, if publication was “in the interests of science, literature, art or learning, or of other objects of general concern”. Penguin decided to publish an unexpurgated edition because of the new Act. The Old Bailey case was an arranged trial, fixed up in advance with the director of public prosecutions, Sir Theobald Mathew, in order to clarify the Act’s ambit. The “publication” in question consisted in the delivery of a proof copy to a policeman who called at Penguin’s offices by appointment. It seems reasonably clear, first of all, that the statute was the critical legal change, and, second, that changing public attitudes dictated the outcome of the trial, not the other way round. Similar points could be made about most of Bing’s other cases.

Some of his selections seem particularly odd. Liversidge vs Anderson was the wartime case in which the House of Lords allowed the home secretary to intern anyone he believed to be a threat to the war effort, whether or not there was any basis for his opinion. Bing’s research reveals some fascinating details about the background. But the case was a dead end. It was repudiated by subsequent home secretaries and has been dismissed as an aberration by judges ever since. The thalidomide case, which rumbled on through the 1970s, is included under the heading of free speech. But the outcome in the English courts did not vindicate free speech. The Sunday Times was injuncted from publishing its criticisms of thalidomide’s distributors on the ground that it would prejudice the trial of the civil action against them. The European Court of Human Rights in Strasbourg took a different view, but at the time its decisions were not directly applicable in the UK. The law was changed by statute, not by judges. Nicklinson vs Ministry of Justice, the 2014 case about assisted suicide, disappointed the expectations of the many who believed it should be lawful to help the terminally ill to kill themselves if they have full mental capacity and a settled intention of ending their lives. But in the end a majority of the Supreme Court stuck to the statute that made it a criminal offense.

The only judicial decisions discussed in Bing’s book that were both original and transformative decisions are two Gina Miller in 2017 and 2019. Both appeals arose out of attempts by the government to evade legislative control of the process of leaving the European Union, at a time when it did not command a majority in the House of Commons. The issue was as fundamental as any that has come before the courts. Sir Geoffrey Cox, the then attorney general, declared in September 2019 that the Commons, which had just defeated the government, had “no moral right to sit”. The last person to have said such a thing was Oliver Cromwell in 1653, when closing down the Rump Parliament with a troop of soldiers and inaugurating several years of military dictatorship: “You have sat too long here for any good you have been doing.”

In the first Miller appeal the Supreme Court stopped the government of Theresa May from giving notice to leave the EU without parliamentary authority. In the second the Court stopped Boris Johnson from proroguing parliament at a critical stage of the negotiations with the EU so as to give him a free hand to negotiate something that it would not like. The first appeal gave rise to the fullest analysis of the constitutional relationship between the parliament and the executive since the famous textbook by the Victorian academic Albert Venn Dicey. In the second appeal the Supreme Court had to come up with an answer to a question that had never arisen before, on which there was no guidance from statute or existing case law. Yet both cases were conservative in outlook and effect. The court vindicated a much older principle, namely that the legitimacy of governmental action depends entirely on parliamentary support. Without that principle we are not a democracy at any time between general elections. The two Miller appeals did not make modern Britain, but it can fairly be said that if the decisions had gone the other way they would have remade modern Britain in a most unattractive mold.

Politics has a poor reputation. This is an abiding problem of representative government. It creates a professional class of political intermediaries who can never be truly representative of their electors because they are constrained by the need to compromise in order to build majorities. Many people feel that the awesome power of the judges arrive at principled decisions and commands should be used to cut through all this, in support of radical improvements in our society. They would like to see judges proactively making modern Britain, provided, of course, that it is remade in their own image.

These people are destined to be disappointed. For what Inigo Bing’s ten cases illustrate is not so much the radicalism and creativity of judges as their fundamental conservatism. This is not because they object to change. It is because most of them are conscious of the constitutional limitations of their role. This may be frustrating for reformers in a hurry, but on the whole it is a sound instinct.

Jonathan Sumption QC is a former Justice of the Supreme Court of the UK. His most recent book is Law in a Time of Crisis2021

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