427 results in English Legal System
15 - Big lawyers and little lawyers
- Stephen Sedley
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- Ashes and Sparks
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- 05 June 2012
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- 24 February 2011, pp 161-169
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This was a review, published in the London Review of Books in 1996, of Lord Woolf's final report on the reshaping of civil justice and of a book by his IT consultant, Richard Susskind, on the challenges posed by IT technology to the future of the law.
The fate of the Hong Kong project to codify the common law in time for the handover was not as final as I thought. It was restarted, and I now have on my shelf the first complete codification of the English common law. But not in English.
It will soon be two hundred years since Napoleon, as First Consul, appointed four not especially distinguished lawyers to sit down and codify the entire heterogeneous mass of French civil law. They were appointed in August 1800 and by February 1801 had produced and published a complete draft of the Civil Code. After taking the views of the judges and the Tribunal, Napoleon chaired nearly half of the 123 subsequent redrafting sessions of the Conseil d'Etat, some lasting from noon to dawn, repeatedly insisting that detailed prescriptions would be self-defeating and that the right method was to set out the goals the courts were to achieve. By the spring of 1804 the whole project was law.
The fresh codification now under way under the great conseiller Braibant is the task of a decade where Bonaparte's commissioners took little more than four months.
10 - Everything and nothing
- Stephen Sedley
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- Ashes and Sparks
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- 24 February 2011, pp 122-130
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This occasional piece for the London Review of Books,published in October 2004, looked at the British constitution in motion.
In June last year the Lord Chancellor, Lord Irvine, was dismissed in a cabinet reshuffle. It was announced, not to Parliament but by press release, that his office was not to be filled and that his department was to become part of the Department for Constitutional Affairs, headed by a newly appointed minister, Lord Falconer. Of the expected Ministry of Justice there was no sign. The Home Office, it appeared, would not relinquish its hold on criminal justice. Then it was realised that there were scores of functions which by law only the Lord Chancellor could perform, and Lord Falconer, wearing a morning coat instead of the splendid black and gold robe, was sworn in as a nightwatchman Lord Chancellor. The joke went round Whitehall that the legislation enshrining the new dispensation was to consist of a single clause giving press releases from Number Ten the status of primary legislation.
Only then did public consultation begin. Papers on a new supreme court, the reform of judicial appointments, the future of the Queen's Counsel system and of the Lord Chancellor's office, came out so swiftly and in such polished form that the constitutional historian Robert Stevens has speculated that they must have been in preparation before the changes were announced.
26 - Policy and law
- Stephen Sedley
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- Ashes and Sparks
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- 24 February 2011, pp 255-262
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In his years as one of the Advocates General of the European Court of Justice, Gordon Slynn (later Lord Slynn of Hadley) was a key figure in the rapprochement of the law of the United Kingdom and the European Union, and in the development of both.
To me he was this and rather more. In 1968 he had succeeded Nigel Bridge as Treasury Devil (standing counsel to the government), and had found himself responding to one case of mine after another, as judicial review began to be developed by law centres and high-street solicitors to challenge not only central government but local officials and benches whose understanding of due process was sometimes modest. Slynn was a principled opponent, giving no quarter on bad points or weak arguments but ready to concede and sometimes to offer good points even if the court didn't like them.
This essay was contributed to the Festschrift assembled for him in 2000.
A generation ago (which in modern public law is not that long) law was law and policy was policy. Law was for the courts; policy, provided it did not overtly contravene the law, was for ministers. We had got as far as the proposition that a policy was not an unlawful fetter on a discretion provided an eye was kept open for exceptional cases, but for the rest discretionary decisions were not generally vulnerable.
12 - Justice miscarried
- Stephen Sedley
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- Ashes and Sparks
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- 24 February 2011, pp 141-146
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This article, discussing concerns about the quality of criminal justice in high-profile cases, was published in the London Review of Books in 1987, when I was practising at the Bar. At the time when this piece was written, the only way to reopen a conviction after an unsuccessful appeal was on a reference of the case back to the Court of Appeal by the Home Secretary. In 1997 the Criminal Cases Review Commission finally came into being, with an independent power to reopen cases and refer them back.
I had represented one of the Birmingham Six, Gerard Hunter, in civil proceedings against the police for assault. In the light of the eventual acquittals, the striking out of the civil claims in order not to cast doubt on the convictions was not one of the law's finest moments.
In the London Review of Books some months earlier I had reviewed Paul Foot's book on the Carl Bridgewater murder case, in which, after an investigation and trial redolent of police malpractice, four men had been given life sentences for the murder of a thirteen-year-old newspaper delivery boy who had stumbled on a burglary in an isolated farmhouse. In 1988, on the Home Secretary's reference back of the case to the Court of Appeal, I was briefed for the youngest of the accused, Michael Hickey. In spite of a compelling case assembled by their solicitor, James Nichol, the convictions were upheld. […]
35 - Human rights: a twenty-first century agenda
- Stephen Sedley
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- 24 February 2011, pp 348-364
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This paper, given as the 1995 Sieghart Memorial Lecture for the British Institute of Human Rights, marks my shift from scepticism to acceptance of the value of a domestic human rights instrument.
Lord Scarman, who chaired the lecture, summarised it in Heraclitus's words: ‘everything is in flux’. But while that is right, the essay may also be of interest as a proleptic look at what, three years later, became a legal reality.
The end of history seems a good moment to take stock. Fukuyama's conceit (I mean it in both senses) that the triumph of western liberalism has stopped the clock of change – has put an end to history – is already waning. We may reflect that human rights themselves have played a sacrificial role in this process, for the demise of the regimes of eastern Europe was accelerated by a megaphone rhetoric of human rights from states, including our own, with an embarrassing capacity for overlooking human rights abuses among their own allies and clients and even within their own frontiers. The message between the lines has been that human rights are a commodity like any other, capable of being traded for political or economic advantage, and the rhetoric little more than the conduct of politics by other means.
This is not, however, a complaint about the politicisation of human rights. They are by nature political, for they seek to condition how states treat individuals.
16 - Parliament, government, courts
- Stephen Sedley
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- Ashes and Sparks
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- 24 February 2011, pp 170-180
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This was a review for the London Review of Books of four books on constitutional law: two volumes of essays, one on The House of Lords: its Parliamentary and Judicial Roles, edited by Brice Dickson and Paul Carmichael, the other on The Law and Parliament, edited by Dawn Oliver and Gavin Drewry; Robert Hazell's Constitutional Futures: a History of the Next Ten Years; and a book by Christopher Vincenzi, Crown Powers: Subjects and Citizens.
The essay is among other things a reminder that the scandals which erupted in 2009 and 2010 about MPs claiming excessive expenses and offering their services to lobbyists were neither unprecedented nor unpredictable.
One note may be worth adding to the discussion in the last part of this essay of the royal prerogative. I took it in 1999, when this review was published, that the grand prerogative powers of the state to do what no individual can do – declare war, make peace, create peers, sign treaties, appoint judges and ministers, and summon and prorogue Parliament – were beyond the reach of the courts. But in 2007 I was a member of the Court of Appeal which upheld the striking down by the High Court of the prerogative Order in Council that took away the right of the Chagos islanders to return to their former home. […]
30 - Fundamental values – but which?
- Stephen Sedley
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- 24 February 2011, pp 295-301
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Legal ethics are taught as part of every Bar qualification course in the United States. In Britain there is a single university chair (at Exeter) in the subject. This was a review, published in 2001 in the London Review of Books, of Fundamental Values, a volume by several hands, edited by the then holder of the chair, Kim Economides.
About ten years ago bans were imposed by two French municipalities on local funfairs where, for a few francs, revellers had been permitted to shoot a dwarf from a cannon. The official reason was the maintenance of public order, but the regional courts which initially overturned the bans pointed out that the shows were entirely orderly. The real issue was human dignity; but the people whose dignity was being compromised were the dwarfs who made their living from the spectacle and were among the chief opponents of the ban. The Conseil d'Etat, the final appeal court, restored the prohibitions, deciding that public order included public morals and that these were violated by assaults on human dignity even in cases where the victim was willing.
Once, before the onset of middle-class morality, the English courts had taken a similar line to the French regional courts. Chief Justice Holt, the first great judge of the Bill of Rights era, throwing out the indictment against a bookseller named Read for publishing a dirty book called The 15 Plagues of a Maidenhead, said: ‘This is for printing bawdy stuff that reflects on no person … If there is no remedy in the spiritual court, it does not follow there must be a remedy here […]’
Preface
- Stephen Sedley
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I wish I could present this collection of lectures and articles as a rounded philosophy of law and justice. While I have things to say on both subjects, I aspire to be neither Rawls (whom I did not know) nor Dworkin nor Sen (both of whom I know and admire). This is partly at least because what they do is macro-justice, while I do micro-justice. Although in a moment of self-parody many years ago I added ‘changing the world’ to my banal list of hobbies in Who's Who (a recreation which the Daily Mail, whenever it denounces me, cites with the utmost solemnity), the most a barrister or judge can ordinarily do is change the future for a few individuals.
As a judge, too, one can occasionally, superior courts permitting, change the law for the better. While this book does not include any of my judgments (a collection of extrajudicial writings is vanity enough), I hope I have done something in this direction. I have at least enjoyed the experience of first being declared a heretic by my judicial superiors for advancing the boundaries of what citizens can legitimately and enforceably expect from the state and then, as heretics do if they are spared the flames, watching the heresy become orthodoxy.
It may have nothing to do with anything, but reading English at Cambridge between 1959 and 1961 still strikes me as the best thing I ever did.
6 - No law at all
- Stephen Sedley
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- 24 February 2011, pp 56-63
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This essay on the legal and political aftermath of the 1865 Jamaica revolt was published in the London Review of Books in 2006 as a review of A Jurisprudence of Power: Victorian Empire and the Rule of Law, by R. W. Kostal.
On 11 October 1865, a crowd of poor black Jamaicans burned down the Morant Bay courthouse and killed 18 people, most of them white and one the local chief magistrate, who had just had them fired on by soldiers after a reading of the Riot Act. The governor of the island, Edward Eyre, on the advice of his military commander and his law officers, decreed martial law in the county where Morant Bay lay, but excluded the town of Kingston. Although the uprising was put down within a week, in the month that passed before the decree expired the military was allowed an orgy of shooting, flogging and more or less arbitrary executions. The Cornhill Magazine put the number of deaths at 439 and floggings at 600.
If this had been all, there would probably have been a transient fuss in England, after which Eyre's career would have continued to flourish. The largest controversy provoked at home by the Indian Mutiny seven years earlier had been about Charles John Canning's attempts as Governor General to rein back the brutality of the military reprisals.
Index
- Stephen Sedley
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- 24 February 2011, pp 407-425
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31 - Overcoming pragmatism
- Stephen Sedley
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- 24 February 2011, pp 302-310
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Reviewing Judge Richard Posner's book Overcoming Law for the London Review of Books in 1995, and having read some of his many other writings, I had formed a mental image of a pugnacious, fast-talking polymath who would tolerate no contradiction. When, not long afterwards, Posner (then chief judge of the Seventh Circuit Court of Appeals) became an honorary bencher of the Inner Temple, I met a quiet-spoken man who was interested in other people's ideas. This is one of several reasons why it is better not to know the authors you are reviewing.
The sixth form at the boys' boarding school where I was educated was addressed on one occasion by an outside speaker, a sanctimonious pedagogue who announced to us that he and his wife – bootfaced on the platform beside him – had overcome sex. He counselled us to do the same. To an audience of overheated seventeen-year-olds whose only ambition was for sex to overcome them, the proposition was as mystifying as a book written by a judge and called Overcoming Law.
The judge in this case, Richard Posner, is the Chief Judge of the United States Court of Appeals for the Seventh Circuit. He is also a senior lecturer in law at Chicago University and a widely published polemicist. At the heart of his polemics are three pulses, legal pragmatism, Millian liberalism and legal economics, which Posner believes beat in sympathy.
21 - Rarely pure and never simple
- Stephen Sedley
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- 24 February 2011, pp 213-224
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This paper was given as the Leicester University Law School Lecture in November 2004. The cautious passage towards the end about the uses of DNA was published by the London Review of Books. There it rested until, three years later, a BBC journalist looking to put together a piece for the Today programme about DNA records got me to say on tape what I'd said in the lecture. The resultant brouhaha – the BBC leading its news bulletin with ‘A senior judge has called for a national DNA register’, the press picking it up and running everywhere with it – did not do much for such liberal credentials as I had.
It remains the case that DNA is a potent instrument both for detecting the guilty and – just as important – for eliminating the innocent, though I am less sanguine now than I was in 2004 about the feasibility of restricting a register of such information to safe hands. But a universal register has in any event been placed beyond reach by the decision of the European Court of Human Rights in the Marper case, which at the time of the lecture had just been decided by the House of Lords. Instead of recognising that the DNA regime in England and Wales was arbitrary and discriminatory in the ways described in this essay and proposing principled reforms, the UK government sought to defend it in Strasbourg, and in consequence came away with a decision that no ‘blanket’ system (which ours, ironically, was not – on the contrary – it was partial in both senses) was compatible with Article 8 of the Convention. […]
17 - Judges in lodgings
- Stephen Sedley
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- Ashes and Sparks
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- 24 February 2011, pp 181-186
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Mary-Kay Wilmers, the editor of the London Review of Books, pressed me to write a piece about life in the judges' lodgings. By the time I wrote it, in the autumn of 1999, my lodgings life was at an end: the PM's letter had come offering a seat on the Court of Appeal, and nostalgia was already starting to infiltrate memory. I still think that it is valuable to the administration of justice to have High Court judges sitting on rota at court centres in England and Wales.
In the pocket of my dinner jacket, because I can't bring myself to throw it away, is a slip of paper bearing in a neat italic hand the words ‘I expect you have remembered to ask the Bishop to say grace’. It was passed to me some years ago during pre-dinner drinks at the judges' lodgings in Lincoln by the butler, who had sensed that, though formally in charge, I was not to the manner born.
I had the same sense of not quite belonging in the Plymouth lodgings last winter. The lodgings, a terraced dwelling of colossal proportions on the Hoe, was once Nancy Astor's town house. She left it to the nation, and it is now let out to visitors in all its glory by the city council; though I can't believe that the en suite bathroom, where the bidet has a jet resembling Lake Geneva's, is as it was in her day.
8 - The spark in the ashes
- Stephen Sedley
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- 24 February 2011, pp 88-100
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Many years ago a retired solicitor, Donald Veall, who had been working his way through the law reform pamphlets contained in the Thomason Tracts in what is now the British Library, sent me the manuscript of what became a seminal work on the English civil war, The Popular Movement for Law Reform, 1640–1660. My eye was caught by some striking quotations from a writer, John Warr, of whom I knew nothing. In the years that followed I traced and, with the American historian Lawrence Kaplan, edited Warr's known writings. By chance the book, A Spark in the Ashes,was published on the day in October 1992 that I was sworn in as a High Court judge. It took its title from one of Warr's many memorable sentences: ‘There are some sparks of freedom in the minds of most, which ordinarily lie deep and are hidden in the dark as a spark in the ashes.’
This essay on the modernity of the constitutional ideas of the Levellers was presented (on DVD, with introduction and questions by videolink – recommended for those with guilty consciences about their carbon footprint) at a conference in Wellington, New Zealand, in 2007, held to mark the first appointment of a New Zealand judge – Sir Kenneth Keith – to the International Court of Justice. Since delivering the paper I have had the advantage of some valuable comments on it by Professor Keith Thomas.
2 - Above it all
- Stephen Sedley
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- 24 February 2011, pp 17-28
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This was a review, published in the London Review of Books in 1994, of two innovative books. One, Suing Judges, by a young academic, Abimbola Olowofoyeku, who went on to achieve distinction, was a comparative study of what some regard as anomalous and others as essential to the administration of justice – the immunity of judges from lawsuits. The other, The Independence of the Judiciary,was the product of a trawl by the veteran Anglo-American scholar Robert Stevens through the Lord Chancellor's archives, set in a matrix of constitutional law.
Some of the reflections prompted by the two volumes on the constitutional position and role of the judiciary have been borne out in the developments of subsequent years.
For some reason the Mansion House was not struck by a thunderbolt on the night in 1936 when the Chief Justice, Lord Hewart, told the guests at the Lord Mayor's Dinner: ‘His Majesty's Judges are satisfied with the almost universal admiration in which they are held.’ Or, for that matter, on the same occasion in 1953 when the Lord Mayor told the diners: ‘Her Majesty's judges have a greater understanding of human nature than any other body of men in the world.’
But who is to judge the judges? Well, there's the Court of Appeal, and beyond it the Judicial Committee of the House of Lords, both of them capable of rapping judicial knuckles and occasionally drawing blood: but they're just more judges.
37 - Bringing rights home: time to start a family?
- Stephen Sedley
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- 24 February 2011, pp 377-390
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This paper was given as the Mishcon Lecture at University College, London, in late 2007. Not quite a decade after the passing of the Human Rights Act, it picked up the initial intent which was now coming again to the top of the political agenda – the possibility of enhancing, rather than diluting or abandoning, the European Convention.
If you had asked an eighteenth- or nineteenth-century Englishman about his country's constitution, you would not have got the baffled look you get today. The belief that a constitution is a document and that we do not have one is a comparatively recent phenomenon. Mr Podsnap was in no doubt whatever about the reality of a constitution that nobody could actually see:
‘And Do You Find, Sir,’ pursued Mr Podsnap, with dignity, ‘Many Evidences that Strike You, of our British Constitution in the Streets of the World's Metropolis, London, Londres, London?’
The foreign gentleman begged to be pardoned, but did not altogether understand …
‘I merely referred,’ Mr Podsnap explained, with a sense of meritorious proprietorship, ‘to Our Constitution, Sir. We Englishmen are Very Proud of our Constitution, Sir. It Was Bestowed Upon Us By Providence. No Other Country is so Favoured as This Country.’
It's therefore worth being cautious about proposed constitutions, whether for Europe or for Great Britain, because in one form or another both already have constitutions. You do not have to be a state to have one: every off-the-shelf company, trade union branch and golf club has a constitution.
24 - The right to know
- Stephen Sedley
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- 24 February 2011, pp 233-245
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This essay was a contribution to a 1999 Festschrift for Sir David Williams QC, Cambridge's first full-time Vice-Chancellor and a distinguished public lawyer who had written far more elegantly than I could on subjects like this.
There was an expectation in 1999 that the coming into domestic effect of the European Convention on Human Rights would give us two much-needed rights: privacy and access to information. The first has been slow in coming, but under pressure from Strasbourg it is largely now there. The second has come through Parliament's own initiative, the Freedom of Information Act 2000. It is not exactly a cornucopia, but in the hands of a vigilant Information Commissioner it has worked well, sometimes – and rightly so – to the embarrassment of the government which promoted it.
‘Oh God, they have deceived me’: George III on his deathbed.
We are accustomed to finding that we have been lied to. To insure ourselves against such deceptions we repeat the mantra that we don't believe everything we read in the newspapers. There have been, and must still be, parts of the world where the reputation of the press is such that people don't believe anything they read in their newspapers. Because our experience in the United Kingdom is less uniformly bad, we tend to give initial credence to what we are told.
9 - Wringing out the fault
- Stephen Sedley
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- 24 February 2011, pp 101-121
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Northern Ireland, where the methods of interrogation used by the security services had resulted in the condemnation of the United Kingdom by the European Court of Human Rights, seemed an appropriate place to explore the history of coerced evidence and the bar on self-incrimination in the modern world. This was the subject of the MacDermott Lecture which I gave in Belfast in 2001.
The essay argues that the decision of the European Court of Human Rights in the Saunders case sent us down a blind alley. We seemed to be slowly extricating ourselves from it by principled reasoning when 9/11 happened. The fears expressed here of what the response to that atrocity might do to the principles of due process and the right not to be tortured proved grimly well-founded.
I admit to being a footnote freak. In the conviction that there is no such thing as useless information, I scan the footnotes in everything I read and annotate my own work, where possible, with data that I can't get into the text. This essay, in addition to being published unannotated in the London Review of Books, was published fully annotated in the Northern Ireland Legal Quarterly; but rather than send other footnote freaks in search of that publication, I have reproduced the less technical ones here.
For at the common law … his fault was not to be wrung out of himself, but rather to be discovered by other means, and other men. Blackstone, Commentaries, IV, 296.
29 - Human rights – who needs them?
- Stephen Sedley
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- 24 February 2011, pp 285-294
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This essay was written for the London Review of Books in 1992 while I was at the Bar. When, later that year, I was offered a seat on the bench, it was on the clear understanding that, while there was no reason (now that the Kilmuir Rules had been abandoned) why I should not continue to write and lecture on legal topics, party political issues were off limits; and so it has been.
In 1992 I viewed with scepticism not only the idea of incorporating the European Convention on Human Rights into the law of the United Kingdom but the desirability of a Bill of Rights of any kind. The scepticism is reflected in this discussion of a batch of publications urging constitutional reform. I acknowledge that history has overtaken me and that much – not all – of my scepticism was unjustified. This essay nevertheless forms part of an argument which is not yet over.
It has taken twelve years of Thatcherism to disrupt the complacency of the British about their civil liberties and their constitution. Our constitutional arrangements have never been much more than a matter of convention, and what passes for constitutional law has generally been a Panglossian description of the way things are. Our liberties are largely the product of a carry-over into the statism of the nineteenth and twentieth centuries of procedures (notably jury trial) and rights (notably the integrity of person and property) created in an earlier period by a judiciary concerned to consolidate the transfer of power from monarch to entrepreneur.
33 - This beats me
- Stephen Sedley
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- 24 February 2011, pp 325-334
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In 1998 I reviewed for the London Review of Books three books concerned, from very different standpoints, with interpretation: a new edition of Francis Bennion's practice manual on statutory interpretation, a volume of academic essays on law and interpretation, and a book by Mary Brennan and Richard Brown, Equality Before the Law: Deaf People's Access to Justice.
Not long before, I had tried a group of profoundly deaf teenagers on a murder charge and had seen both the difficulties which lack of hearing created in court and the skills with which the defendants and their interpreters coped with these. It is possible that, in this light, the review displayed some tetchiness towards the etherialities of academic debate.
At the time this essay was written the drafter's explanatory memorandum, the notes on clauses, became public only when they were placed after a gap of 30 years in the Public Record Office. It has since become the practice to publish explanatory notes with every parliamentary bill.
‘So, then,’ says a founding father, quill poised, to the founding fathers around him in Gary Larson's cartoon, ‘Would that be “Us the people” or “We the people”?’
If deciding what to write is tough, interpreting what gets written is tougher. Turgid texts need unravelling; obscure provisions need deciphering; occasional nonsense needs correcting; perfectly clear texts may be impossible to apply to novel situations.