Professor of Constitutional Law
University of Edinburgh
Copyright 1998 Colin Munro
First published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
Constitutional reform is proceeding apace, and so a book on 'The Making and Remaking of the British Constitution' is timely. Perhaps it is all the more welcome because its principal authors are drawn from the ranks of the judiciary and not from the usual academic suspects.
The book has come about in this way. The University of Warwick had Lord Radcliffe as its first Chancellor, and commemorates this annually with a series of Radcliffe Lectures. In 1996-97, it was the Law School's turn to choose the lecturers, and it invited Lord Nolan and Sir Stephen Sedley to share the task and to lecture on the constitution. The lectures, with a postscript by Professor Geoffrey Wilson, who had chaired them, are collected to form one of the publisher's series under the title 'Law in its Social Setting'.
There are three lectures by each of the two judges, who must be counted as participant observers of the constitution. Lord Nolan's lectures are devoted to the three major institutional arms, the legislature, the executive, and the judiciary. The division, however, should be seen as merely one of convenience, for he rejects any notion that there exists a sharp division of powers, and notes without regret that functions may unobtrusively and gradually pass from one province to another. Lord Nolan, like Lord Radcliffe before him, has been appointed to commissions of inquiry by the government of the day and is unapologetic about the contributions made by judges to the body politic. Professor Wilson at least, seems to approve, rejecting the common term 'extra-judicial' as a misnomer, in the light of the regularity with which judges are asked to perform constitutional functions precisely because they are judges.
Lord Nolan concludes that Parliament's ultimate sovereignty remains intact as a matter of law, while believing that its influence has diminished over the years, and external developments, which it is unable to control, are tending to diminish that influence further. He advises it to look forwards with realism rather than backwards with nostalgia. There are suggestions for reforms of select committees, to enable better control of the executive. The House of Commons, commended for its readiness to act on the recommendations of the Committee on Standards in Public Life (which he was still chairing at the time) is warned that it must remain determined to act, in order to rebuild public confidence. Changes in the shape and functioning of the executive, Lord Nolan suggests, will necessarily alter the ways in which the executive may be held to account, and too much concentration on the formal accountability of ministers to Parliament may tend to obscure other forms of accountability which have an increasing importance of their own. Lord Nolan is a supporter of the jury system and, as we might suppose, of judicial independence. He also puts in a word for the Woolf proposals on civil justice, and for the incorporation of the European Convention on Human Rights.
Where Lord Nolan's style is measured and schoolmasterly, Sir Stephen Sedley's is more contentious. The main thread which runs through his lectures is the recognition of the courts as secondary makers of law as well as primary interpreters of it. His defence of the common law and his enthusiasm for its capacity to perform "its proper role within our organic constitution" (p.31) sometimes appear radical, yet sometimes seem oddly conservative. However, he believes that reform of our present condition is necessary because of "the enduring and fundamental need to keep party and state distinct" (p.81), even if the precise pathways to reconstruction remain to be worked out. Sedley's lectures include some interesting byways on, for example, slavery cases in the eighteenth century, and contests over women's rights in the nineteenth and early twentieth centuries. Here and there his research into neglected lines of common law is reminiscent of Lord Denning at his best. But Homer nods in one place, when it is said that the Bill of Rights followed the death of James II: as every Irish schoolboy knows, the Stuart King was a defeated combatant at the Battle of the Boyne. At another point this lecturer denies that convention requires that ministers must be members of either House, citing in support the periods in office of Patrick Gordon Walker and Frank Cousins. However, the resignation of Gordon Walker when (unlike Cousins) he failed to win a seat surely attests to the existence of the convention. If they are not consistently persuasive, Sir Stephen Sedley's lectures are certainly stimulating. They are occasionally humorous too, as when he observes that advocates have begun to use the work 'Wednesbury' as an expletive ('My Lord, this was Wednesbury unfair'). The note of humour is, however, interjected in a complaint that there has been a drop in the quality of presentation and argument by lawyers, as judicial review has expanded.
In a postscript chapter entitled 'The Courts, Law and Convention', Professor Geoffrey Wilson usefully brings some of the themes of the lectures together, and adds some interesting remarks on constitutional reform. He encourages judges to assume a more general constitutional function, "not in any expansionist spirit, but in a way that is conscious of the desirability of an underlying unity of the constitution as a whole, including both its legal and its conventional parts" (p.108). Some of us may be forgiven if we harbour doubts. Wilson also has much to say on the subject of constitutional conventions, some of which is illuminating. However, his argument suffers from an absence of analysis: for example, at different times he refers to the sovereignty of Parliament, the rule of law, statutory interpretation, precedent, rules of parliamentary procedure, and even judicial review, as being conventions. This blurring of categories does not conduce to clear thinking.
The judges' lectures, delivered in November and December 1996, deal with important topics, yet in some respects already appear as period pieces. In part, this is because some matters touched on have been overtaken by events, in the surge of constitutional activity since May 1997. Besides, some of the anxieties which were to the fore in late 1996 were passing clouds. Sir Stephen Sedley refers to "a press arsenal directed in recent years at the judiciary" (p.24), and both judges are at pains to deny that there was antagonism between judges and ministers or that the judiciary had a political agenda of curbing the activities of a government too long in power. Both are anxious too to counter criticisms of the remoteness of judges and to defend the competence of judges in sentencing, although Sir Stephen Sedley concedes that judicial responsibility for sentencing is not derived from any principle of constitutional bailiwicks but is merely a historical circumstance. These points are all very well, but the judges' insistence is apt to puzzle a student of 1998, who may be unaware of the provenance of these anxieties in the febrile pre-election times of 1996.
The book has a somewhat eccentric index. It is prefaced by the assurance that "persons whose views are discussed are included within the index" while "persons merely mentioned are not", despite which it includes page references for Tony Bland, Freddie Laker, Neil Hamilton, Joseph Stalin, and the slave owner Stapylton, amongst others.
In all its contributions, this book embraces the view that judges should be seen as the third arm of the state. The cures prescribed here for our ills should be taken carefully, perhaps with doses of John Griffith at hand as a counter-measure, if not an emetic. However, the book should certainly be read and discussed by students of the constitution, which is being refashioned more quickly than its authors could reasonably have anticipated.