Abstract
Decision-making in the Lords does not take place in a vacuum. A number of individuals and groups exist whose notions of acceptable behaviour for a judge when deciding appeals (i.e. of his role), potentially have an influence on a Law Lord. These potential or would-be reference groups* might include fellow Law Lords, other members of the Judiciary, Benchers, barristers, legal academics, litigants, solicitors, the legislature, the media and the general public. But which, if any, of these actually do influence the Law Lords when they are deciding appeals? Those whom the Law Lords have in mind as audiences when preparing their speeches, those with whom they most frequently discuss their decisions and those whose criticism the Law Lords pay most attention to, would seem to be the prime candidates.
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Notes and References
Ch. Perelman and L. Olbrechts-Tyteca, The New Rhetoric (Indiana: University of Notre Dame Press, 1969).
‘La Cour Judicaire Supreme’, 30 Rev. Int. Dr. Comparé (1978) at p. 71. For empirical evidence on the audiences perceived by American judges, see T. Marvell, Appellate Courts and Lawyers (Connecticut: Greenwood Press, 1978) pp. 110–11.
For a convenient description of the ceremony, see L. Blom-Cooper and G. Drewry, Final Appeal (Oxford: Clarendon Press, 1972) p. 102.
Removal is arguably the severest sanction for judicial ‘deviance’ but it has never formally occurred in the case of a Law Lord. The distasteful episode in which Lord Atkinson was ‘requested’ to resign in 1927 (see R. F. V. Heuston, Lives of the Lord Chancellors 1885–1945 (London: Oxford University Press, 1964) pp. 303–4) involved not so much the application of sanctions for deviance as the sensitivity demonstrated by successive governments to issues involving appeals to the Privy Council. It was Australian criticism which eventually led to the publication of dissents in the Privy Council in 1966, ensured that five judges sat on Australian Appeals and that they were normally presided over by Lord Reid or Lord Wilberforce during the latter years of my period. It also helped to make the Privy Council reluctant to grant leave to appeal in an Australian case.
This has changed a little in the past three years because of Hugo Young’s success in persuading a number of judges to discuss legal matters on his BBC Radio 4 series, ‘Talking Law’. Lord Denning has given numerous television, radio and newspaper interviews in the past ten years. Amongst the most revealing of these appeared in the Sunday Times on 17 and 24 June 1973 (Hugo Young was again the interviewer). Lords Radcliffe and Devlin appeared on a Thames Television programme on ‘The Judges’ broadcast on ITV on 12 October 1971 but they were both retired at the time. Lord Reid appears to have given an informal interview to Marcel Berlins, The Times law correspondent on the eve of his retirement, see The Times, 14 January 1975. Responses by Law Lords in the media, to criticisms of their or their colleagues’ decisions, have been few and far between. Lord Davey wrote a letter to The Times (published on 26 September 1904) in defence of his judgement in the Lords in the celebrated Scots Free Church appeal and does not seem to have been criticised for so doing. But Lord Maugham attracted considerable criticism for having written to The Times in 1941 in reply to Lord Atkin’s forceful dissent in Liversidge v. Anderson (see R. F. V. Heuston Liversidge v. Anderson in Retrospect’, 86 L.Q.R. (1970) 33). Yet, more recently, neither Viscount Dilhorne’s letter to The Times (published on 8 April 1975) objecting to an interpretation given in a Times leader to his speech in Broome v. DPP, nor Lord Scarman’s letter to The Times (published on 31 July 1980) in defence of his colleagues’ decision in the British Steel v. Granada (1980) case, seem to have been regarded as reprehensible actions. On the English Judiciary and the media in general, see S. Shetreet, Judges on Trial (Amsterdam: North-Holland Publishing, 1976) pp. 341–5.
Lord Devlin once or twice discussed difficult problems with academics and Viscount Simon is reputed to have done the same with some frequency. For evidence on the consultation of academics by American judges, see Marvell, op. cit., pp. 98–9.
See e.g. 24 Alabama L.R. (1971) at p. 12 and M. Berry, Stability Security and Continuity (Connecticut: Greenwood Press, 1978) p. 44.
The one exception to this is the Lord Chancellor who frequently receives complaints about particular judges and decisions because of his position in the legal hierarchy. Few of these complaints seem to relate to decisions by the House of Lords. See Lord Hailsham, The Door Wherein I Went (London: Collins, 1975) p. 257.
E.g. R. Megarry, ‘Law as Taught and Law as Practised’, 9 J.S.P.T.L. (1966) 176 at p. 182;
Lord Wilberforce, ‘Educating the Judges’, 10 J. S. P. T. L. (1968) 254 at p. 264;
Lord Gardiner, ‘Law Reform and Teachers of Law’, 9 J. S. P. T. L. (1966) 190 at p. 190;
Lord Reid, ‘The Judge as Law Maker’, 12 J.S.P.T.L.(1972) 22 at p. 22; Lord President Cooper (see T. B. Smith, ‘Authors and Authority’, 12 J.S.P.T.L. (1972) 3 at p. 6) and Lord Simon in his speech in DPP v. Majewski.
Frequent interaction with a Law Lord does not necessarily elevate a group to the status of a reference group for a Law Lord. Thus I found little evidence to suggest that the Law Lords’ wives and families or the civil servants whom they meet frequently, e.g. the Principal Clerk of the Judicial Office, the Lord Chancellor’s Permanent Secretary, and the Law Lords’ personal assistant, had much impact on the Law Lords’ decisions. For an instance where civil servants did try to influence the Law Lords, see A. Lowe and J. Young, ‘An Executive Attempt to Rewrite a Judgement’, 94 L.Q.R.. (1978) 255.
See his tribute to A. L. Goodhart in 91 L. Q R.. (1975) 457.
See L. C. B. Gower, ‘Looking Back’, 14 J.S.P.T.L. (1978) 155. The comment in question appears in Gower, ‘English Legal Training’, 13 M.L.R. (1950) 137 at p. 198.
For a comment on this by a Harvard Law Professor, see W. Leach ‘Revisionism in the House of Lords’, 80 Harv. L.R. (1966) 797 at p. 801. No academic has been raised to the Bench in recent times in England despite the success of Cardozo, Douglas, Frank, Frankfurter and Holmes in the United States. There was one attempt in the 1930s when Harold Laski on Lord Chorley’s suggestion attempted to persuade the then Lord Chancellor (Lord Sankey) to appoint Professor Gutteridge to the Bench. This was opposed by the senior judges and the proposal was dropped. See Heuston, Lives, p. 423.
See J. C. Smith, ‘An Academic Lawyer and Law Reform’ Legal Studies (1981) 119 and
G. Bale, ‘Comment’ 59 Can. B. Rev.. (1981) 164. For a discussion of the increasing influence of articles in legal periodicals on the United States Supreme Court, see H. Abraham, The Judicial Process (New York: Oxford University Press, 1975) pp. 231–3; and T. Becker (ed.), The Impact of Supreme Court Decisions (New York: Oxford University Press, 1969) pp. 13–14. See also J. W. Peltason, Federal Courts in the Political Process (New York: Random House, 1955) pp. 27–8.
An attitude which is not very surprising if Hill v. Hill is any guide. There a strong line-up of seven Law Lords was convened to reconsider the long-standing Court of Appeal decision in Hyam v. Stuart King which had been much criticised by textbook writers. Despite this, Salmon KC’s attempt to cite an article of Dicey’s was met by a trenchant rejoinder from Lord Jowitt LC on the Woolsack — ‘What have the views of Professor Dicey to do with us? Is he an authority?’ None of the Law Lords referred to academic writers in their speeches. The incident is recorded in N. Faulks, No Mitigating Circumstances (London: William Kimber, 1977) p. 113.
At p. 374. The ‘certain writings’ were a lecture delivered to the Law Society and subsequently published. See the note by P. V. Baker, 91 L.Q.R. (1975) 463 at p. 465. Counsel did not have an opportunity of commenting on the lecture in their arguments.
F. A. Mann, ‘The Present Validity of Nazi Nationality Laws’, 89 L. Q R. (1973) 194. For its influence, see Oppenheimer v. Cattermole at p. 268.
See R. Cross, Precedent in English Law, 2nd edn (Oxford: The Clarendon Press: 1968) p. 4.
See H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961) pp. 246–7.
See Lord Diplock, ‘Judicial Development of Law in the Commonwealth’, Proceedings and Papers of the Fifth Commonwealth Law Conference (Edinburgh: Blackwood and Sons, 1978) pp. 493–500;
R. Munday, ‘New Dimensions of Precedent’, 14 J.S.P.T.L. (1978) 201; and
J. Miller, ‘The Law Creative Role of Appellate Courts in the Commonwealth’, 27 I.C.L.Q. (1978) 85 at p. 109.
See Lord Diplock, ‘A.L.G.: A Judge’s View’, loc. cit., p. 459. ‘Counsel, however, still show some natural diffidence in citing some of the current notes in the Law Quarterly on cases decided by judges before whom they are appearing. These we read only privately.…’
James Boswell, A Journal of a Tour to the Hebrides, ed. L. F. Powell (London: J. M. Dent, 1958) p. 10. See also for a similar viewpoint, Lord Macmillan in ‘The Ethics of Advocacy’ in Law and Other Things (Cambridge University Press, 1937) pp. 171–99; and Denning LJ in Tombling v. Universal Bulb Co. at p. 297.
R. Nader, ‘Law Schools and Law Firms’, The New Republic (11 October 1969);
Teschner, ‘Lawyer Morality’, 38 George Washington Law Review (1970) 789; and
J. S. Auerbach, Unequal Justice (New York: Oxford University Press, 1976) p. 278. There are dangers in this argument as the difficulty in obtaining representation for terrorists in West Germany has shown in recent times.
G. Bellow and J. Kettleson, ‘The Mirror of Public Interest Ethics’ (1977) unpublished paper;
W. Simon, ‘The Ideology of Advocacy: Procedural Justice and Professional Ethics’, Wisconsin L.R. (1978) 29.
It is not entirely surprising to find such diffidence amongst counsel. As ‘court regulars’ (see A. S. Blumberg, ‘The Practice of Law as a Confidence Game’, 1 Law and Soc. Rev. (1967) 15) and ‘repeat players’
(see M. Galanter, ‘Why the “Haves” Come Out Ahead’, 9 Law and Soc. Rev. (1974) 95) they have got to take their future clients’ positions into account — they will not appreciate starting at a disadvantage in an appeal because their counsel has antagonised some of the Law Lords earlier in his career. Also some barristers consider it bad taste to criticise a fellow Bencher on his performance of his job.
Sir Kenneth Diplock, ‘The Civil Courts in Contemporary Society’, 12 GLIM (1964).
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© 1982 Alan Paterson
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Paterson, A. (1982). Who Influences Law Lords?. In: The Law Lords. Oxford Socio-Legal Studies. Palgrave Macmillan, London. https://doi.org/10.1007/978-1-349-06918-7_2
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