Introduction
These two books are collections of writings by retired judges who have made major contributions to the development of the law in their own ways. Sir Stephen Sedley and Lord Dyson are contemporaries, having been appointed to the High Court bench within a few months of each other in the early 1990s.Footnote 1 As will be seen below, the two judges illustrate contrasting styles and ways of making a difference.
Lord Dyson was the first judge to be appointed to the Supreme Court without a peerage, in 2010, succeeding Lord Neuberger who had not moved to the Supreme Court with the other Law Lords, but had become Master of the Rolls. In 2012, when Lord Neuberger became President, Lord Dyson moved to succeed him again, in the role of head of Civil Justice.Footnote 2 In this respect, Lord Dyson followed in the footsteps of his predecessors Lords Denning, Woolf, Phillips and Neuberger in moving from sitting on the final court of appeal to lead the Civil Division of the intermediate appellate court. Sir Stephen Sedley was appointed to the High Court in 1992, he served on the Court of Appeal for 12 years until 2011, and has been a prominent commentator throughout his career. A Westlaw search reveals that the two judges sat together in 30 cases (across the Privy Council and Court of Appeal). They disagreed on the resolution of an appeal only twice.Footnote 3
There is a value in collections such as these, as they provide a compendium for the examination of a given judge's extra-curial statements. In what follows, we shall, without intending any disrespect, refer to each of their Lordships by surname only, in order to avoid confusion as to which Lordship we mean at any stage. We offer here our reflections and critical commentary on the two books, emboldened by the recognition of Lord Dyson that
If you academics agreed with every judgment that we judges wrote, what would there be for you to write about? … All of this provides a diet rich in nutrients for the academic community.Footnote 4
Justice: Continuity and Change
Lord Dyson's book is in six parts – Reflections on the Common Law and the Power of Judges; Human Rights; Magna Carta and the Rule of Law; Access to Justice and Civil Procedure; Personal; and then a final Epilogue. The opening Preface and the final Personal sections, reveal careful, sometimes even confessional reflections from Dyson, who clearly cares about the judicial role. Dyson writes of growing up in Leeds (where several of the speeches here were delivered), born to a Bulgarian mother and a father of Lithuanian descent who ran ‘a successful dress shop’,Footnote 5 and speaks to the influence his upbringing had on his judicial approach.Footnote 6 Many of the chapters across parts 2, 3 and 4 of the book broadly consider access to justice. Dyson assumed his role at the height of austerity and several of the chapters speak to the challenges of administering the justice system at a time of significant funding cuts,Footnote 7 while trying to remain ‘upbeat about the positive things that we do’.Footnote 8 In a 2015 speech on Magna Carta,Footnote 9 Dyson notes that ‘it is no good having wonderful laws if the state does not provide a fair and effective system of justice to enable individuals to vindicate their rights by reference to those laws’.Footnote 10
One feature of the book is that the speeches are not in chronological order. This is in some respects welcome, as it enables the chapters to be presented thematically (although there is inevitably some repetition).Footnote 11 However, in the absence of direct commentary, the reader may not appreciate the strength of changes in tone and reasons for them. It is perhaps obvious that the final chapter as an epilogue presents Dyson's post-retirement reflections, and thus reveals his views that there has been ‘massive curtailment of access to justice that has occurred in the last few years’Footnote 12 and that the introduction of court fees represented ‘an ill-considered attempt to raise some money’ for the Ministry of Justice.Footnote 13 But it will take the eagle-eyed reader to recognise that Chapter 24, which is entitled ‘Threats to Justice in the Twenty-first Century’ and appears midway through part 4, was given as the Conkerton Memorial Lecture on 6 October 2016, just days after Dyson had stepped down as Master of the Rolls, and was thus able to speak more freely:
It is unquestionably wrong that the civil litigant should be asked (where the civil justice system was already in profit) to subsidise other parts of the system by having to pay additional court fees which are disproportionate and are set a level that he is unable to afford. That, in my view, is outrageous.Footnote 14
The reader does not get the sense that Dyson has any over-arching judicial philosophy, though he commendably notes that ‘As a judge, I tried to make decisions which were clear, humane and sensible’.Footnote 15 Elsewhere, Dyson identifies the ‘judicial temperament’ and the ‘[in]escapable fact that some judges are more conservative than others’. This is perhaps characteristic of a skilled judicial administrator. What does emerge is that Dyson is something of a judicial optimistFootnote 16 about the ability of the courts to develop the law and respect the constitutional and limits of their role. When discussing judicial review, Dyson accepts ‘that the ambit of the self-restraint that I am describing is not clear-cut or hard-edged. It is inevitable that some judges will be more deferential to decision-makers than others’.Footnote 17 He does not agree with certain criticisms offered by some of his judicial brethren: for example, Lord Sumption and Lord Hoffmann both appear in the text as interlocutors.Footnote 18 The general impression is that Dyson thinks that both of those colleagues take some of their criticisms too far. Dyson is more in favour of judges developing the law than some critics. He notes that the government can always introduce legislation if they think that a court decision has struck the wrong balance – the rarity of such legislation ‘suggests that, generally speaking, our judges steer a responsible course’.Footnote 19
There is a choice between offering a collection of speeches as a matter of historical record, which may be one purpose of the book, and offering a revised, updated version of at least some texts. The speeches are all more or less as given. The opening Chapter 1 ‘Criticising Judges: Fair Game or Off Limits?’ is a lecture given in November 2014. It has not been updated since more recent controversies (and indeed some of the ‘recent’ references in the text are no longer so recent). This could perhaps have been improved by cross-references to later chapters, for in the final chapter, Lord Dyson refers to the Miller Footnote 20 saga in strong terms, describing the then Lord Chancellor's response to ‘unwarranted’ media targeting of the judges in the Divisional Court as ‘woefully inadequate’.Footnote 21
There is of course an inherent obsolescence in any legal publishing: indeed, on the same day that the book was published, 8 February 2018, the Supreme Court handed down judgment in what is now the leading authority on duty of care, especially in the public authority context.Footnote 22 But even so, the 2012 speech on the liability of public authorities in negligence seems especially dated. What is more, some weblinks will not work – on p 358, from a speech given in October 2013 the domain address for an item on the Supreme Court websites is listed as ‘supremecourt.gov.uk’. The Supreme Court asserted its independence from the government by changing its web domain to ‘supremecourt.uk’ on 6 January 2014.Footnote 23
As Master of the Rolls, Lord Dyson oversaw the implementation of various reforms in respect of civil litigation. He regards Mitchell v News Group Newspapers Footnote 24 and Denton v TH White,Footnote 25 both cases on relief from sanctions for procedural non-compliance, ‘as among the most important that I decided in my judicial career’.Footnote 26 Dyson does engage with some criticism of those cases,Footnote 27 and considers that they were necessary in order to promote efficiency and ‘to eliminate, as far as possible, a laissez-faire approach by the courts and litigants to rule-compliance… [with the simple aim] to ensure that claims are properly prosecuted at proportionate time and cost to the parties, and to the court system’.Footnote 28
Perhaps because of the legacy of the chapters as speeches, they are not as fully referenced as they could be. The average reader of the book may well be sufficiently conversant with the legal academy to discern that when his Lordship quotes a ‘John Smith’Footnote 29 criticising the Law Lords for making a mess of the law on criminal attempts, he means the eminent Professor JC Smith writing in the Criminal Law Review, but there is no citation to accompany the quote.Footnote 30
There are not too many examples offered from Dyson's own judgments on substantive law. We do learn that he still thinks he was right to lead the majority in abolishing witness immunity for suit in the tort of negligence.Footnote 31 In dissent, Lady Hale had regarded the departure from previous authority as ‘irresponsible’ as the topic was ‘self-evidently … more suitable for consideration by the Law Commission and reform, if thought appropriate, by Parliament rather than by this Court’.Footnote 32 Dyson's response is uncharacteristically sharp:
The majority were not exactly thrilled to be described as ‘irresponsible’. As one of the majority in this case, I accept that I may not be best qualified to express an objective view about it. But I remain unrepentant. I fail to see how it was ‘irresponsible’ and off-limits to remove the immunity. This was classic ‘lawyer's law’ territory.Footnote 33
It is one glimpse into Lord Dyson's substantive views. The overall approach seems to be an openness to cautious incrementalism, and a willingness to defend decisions the particular judge thinks fall on the right side of the line for development: sometimes continuity, sometimes change.Footnote 34
Law and the Whirligig of Time
There is a distinct contrast between the approaches in the two books under review. Before, during and after his time as a judge, Stephen Sedley has provided an invaluable running commentary on the law, principally in the London Review of Books, interspersed with reflections on legal history and wider life. He does not let go of a topic easily, answering back in the letters columns when readers take issue with his articles.Footnote 35 In days of yore, he did not even need a critic to intervene before replying to himself. He followed up his August 1963 article in Marxism Today with another in September, beginning, ‘Thanks to a couple of those chance discoveries that bedevil research into popular song, I find myself in the slightly absurd position of replying to my own contribution to this discussion’.Footnote 36 This conveys the intellectual energy, urgency and passion which Stephen Sedley has brought to the law and to our society.
Sedley's three collections of essays and lectures in this decade have intriguing covers and first class titles: Ashes and Sparks, Lions under the Throne and now Law and the Whirligig of Time. The latest of these, ‘Whirligig’, has more prosaic headings for its four sections. The first is on ‘History’, the second on ‘Law and Rights’, the third is on ‘People’, the fourth ‘Occasional Pieces’. There are forty chapters so just a sample essay or two will be mentioned here to give the flavour of each section.
The book's title comes from Chapter 3 on Human Rights and the Whirligig of Time, a lecture given in Edinburgh ‘in memory of the philosopher and human rights worker Ruth Adler’Footnote 37. The referenceFootnote 38 is to Feste, speaking to Malvolio, in the last scene of Shakespeare's Twelfth Night. But what does time's whirligig mean there and here? In this chapter, Sedley explains it as ‘the revenge which time is for ever taking on things we imagine to be timeless’Footnote 39. In one of those letters criticising one of his reviewers, Sedley states that ‘time's whirligig’ means, ‘the disconcerting intervention of the unintended’Footnote 40. Now that is not what happens in Twelfth Night between Feste and Malvolio because it is very much intended by Feste that Malvolio should be humiliated and receive a comeuppance. In that setting, then, it is more a ‘disconcerting intervention of the pretended unintended’. Time's whirligig is taken by some as relating to a spinning toy, with an element of uncertainty which the spinner cannot control, although a few see in Twelfth Night something of another meaning of ‘whirligig’, namely an instrument of torture.Footnote 41 Sometimes, in this book, the whirligig of time seems to mean that we should be careful what we wish for, because it could happen and come back to haunt us. Or it could mean that what goes around comes around. It is such a delightful turn of phrase that perhaps it does not matter what it means or at least that its meaning is elusive. Or perhaps that is the point. At any rate, while Sedley seems unaware that there are academic lawyers who write at length about time and the law,Footnote 42 he has gifted to us Shakespeare's phrase to ponder in relation to law, which is enough to justify the book. The substance of this essay is that Sedley does not believe that rights are immutable, across time or even space. He asks the very good question as to how the law and public opinion have changed so swiftly on same-sex marriage?Footnote 43 He never quite answers this, which is another reason for another book.
In the second section, the highlight is Sedley giving his verdict on The Brexit CaseFootnote 44 (Miller Footnote 45). He would have sided with the majority but he gives respectful attention to one of the dissents, Lord Reed's. In another chapter in this section, engagingly entitled Colonels in Horsehair,Footnote 46 he shows his irritation at judges being derided for being ‘unaccountable’. He particularly dislikes such gibes coming from ‘unelected-and-unaccountable critics’,Footnote 47 a warning to academics, book reviewers, letter-writers and the wider public. He does not think that unelected critics will want judges to be elected although, immediately underneath the original article on the LRB website, one will find a letter from an unelected critic, Chris Purnell,Footnote 48 who argues that allowing lawyers to put themselves up for election to chair employment tribunals would lead to more ethnically diverse panels. Sedley's essay title conjures up the image of a judicial version of a colonels’ coup, judges in horsehair wigs taking over the constitution, which he does not see happening. But then colonels and judges would say that, wouldn't they?
An even plainer heading for the third section than ‘People’ would have been ‘Men’. It is a series of profiles of lawyers, like Stephen Sedley, most of whom are judges, like Sir Stephen Sedley, with a couple of musical wordsmiths, like Stephen Sedley. The eleven are Rudy Narayan, John Warr, Lords Diplock, Scarman, Bingham and Mansfield, Sir Thomas More, Lords Denning and Sumption, Bob Dylan and Ewan MacColl. Some of these chapters began as obituaries, others as entries in the Oxford Dictionary of National Biography, a couple as responses to events.
Faced with those eleven options, some readers will go straight to the penultimate chapterFootnote 49 with its two profiles of Bob Dylan, a Nobel Laureate (2016) who also has the distinction of both having played music with Stephen Sedley (in 1962) and having been savagely reviewed by him (in 1965). There was an allusion to his connection to this musician in an earlier collectionFootnote 50 but now Sedley spells out his musical pedigree by reprinting his two reviews of Dylan. There is the 1964 review, which was largely positive, and the 1965 one, which was largely not. Sedley's preamble to this Chapter 36 provides Sedley's 2018 response to Sedley 1964 and Sedley 1965: ‘Both reviews display an embarrassing loftiness; but I wonder whether in their time and place they were not on the whole right’. Time's whirligig has not ruffled Sedley's confidence in his own judgment. He does not even mention that Dylan became the Nobel Laureate for Literature in 2016.
Where Dylan went wrong, it seems, was in not listening to critics. Those of us who have been saying for decades that this is a problem with judges will enjoy substituting the odd word or phrase in this vintage Sedley passage to turn it into a template for reviewing essays by Sedley or other judges of the Dylan era:
If Dylan had been intelligently criticised early on by the people he was ready to listen to he would still be trying to write better songs. As it is, he's in effect given up the effort. Much of his new material is cliché-ridden … It's not that he's sold out. Not even that he's running out of ideas, though the … material he's recently been producing doesn't sound too original. I think the real trouble is the universal acclaim that now follows him – the applause drowns the opening lines of half his songs, and the admiration wraps him in cotton-wool. How can you keep protesting hotly when everyone within earshot is busy agreeing with you …?Footnote 51
Talking of opening lines, Sedley occasionally errs, such as in his reference to Denning's ‘famous opening line’Footnote 52 in Hinz v Berry.Footnote 53 When someone writes that, you know that they are going to quote something which is not the opening line, which tells you that they have never read the judgment or have forgotten it and have not checked their sources. Plus, editors or sub-editors have taken the author's word for it. This is odd when there are some minor changes to the text of that chapter as it first appeared in the obituary columns of The Guardian. That could be because of the sub-editing in a newspaper, with Sedley simply repeating his original manuscript. Or it could be that he has revised his opinion, substituting ‘innovating’ for ‘trail-blazing’ or ‘signs’ for ‘some signs’. The opening line of Hinz v Berry, is not, pace Sedley, ‘It was bluebell time in Kent’. It is, rather, ‘It happened on 19 April, 1964’.Footnote 54 That was a point worth making, since the Court of Appeal only heard the case on 16 January 1970, whereupon Denning and the other judges gave their judgments ex tempore. The bluebells were not irrelevant to the tragic events, either. Still, it was a great second sentence.
Sedley's fourth section, his Occasional Pieces, includes diary scraps of life as a barrister, including a victory as a junior barrister over ‘another young and eager barrister named Beloff’Footnote 55 in Bow Court. Rather sportingly, The Honourable Michael Beloff QC in reviewingFootnote 56 this book for The Spectator glossed over Sedley's account. The AfterwordFootnote 57 is a poem. Sedley has written more recently and more persuasively about a cat than in this poem which might, of course, have some deeper meaning or value beneath its feline text. His letter (which came too late for this collection) about Theresa May's claim that an illegal immigrant could not be deported because a judge was worried about the migrant's cat, is his best retort to a critic thus far.Footnote 58
So, is Sedley in a radical bubble, just writing to or for himself? This book title is so intriguing that perhaps Stephen Sedley can be persuaded to write again about his own writing, this time to include an explanation of what he meant by time's whirligig and how the concept applies to himself. Or, to put it another way, there are at least two questions which remain by the end of this book. First, is there anything left written by Sedley which he has not re-published? Secondly, has he changed his mind on anything since the 1960s or is he himself somehow unmoved by the whirligig of time?
The answer to the first question is yes: The Guardian’s archives reveal a 2004 letter in which Sedley added a codicil to the newspaper's obituary of Sydney Carter: ‘It was in 1962 (not 1963) that he wrote, or rather composed, Lord Of The Dance. I went round one morning to see him at his place on the Gray's Inn Road. “What do you think of this?” he asked, hopping gravely from leg to leg and waving his arms. “It's an old Shaker tune. Should it be ‘whoever’ or ‘wherever you may be’?” We were recording the album Putting Out The Dustbin, with Sheila Hancock, on the day the Cuba missile crisis reached its climax. One of the songs was a sardonic revival hymn about the arms race’.Footnote 59 It is possible now to stream music lawfully and cheaply so that everyone who can afford this book or the London Review of Books can read this collection of essays while listening to ‘Putting Out The Dustbin’, knowing that the accompaniment is by Stephen Sedley on guitar or lute and on one track the arrangement is by him. He is, after all, the Bob Dylan of the Bench.
As for the second question, the best openingFootnote 60 to a book review by Sedley could also be usefully republished in his next book. In Marxism Today, October 1977, he began his critique of The Sociology of Law edited by Pat Carlen,Footnote 61 by stating that, ‘We are badly in need of a systematic study of law and the legal system conducted by people other than lawyers. The shelves of law libraries groan with self-congratulatory studies and expositions written by practitioners on the inside looking out’.Footnote 62 Quite so. But this brings us to the biggest reservoir of Sedley's writing yet to be republished: his judgments. If practitioners of the art of judging are going to write about all manner of legal insights, on retiring from the Bench, why not include their own critiques of their own judgments?
The radical Sedley could begin by re-examining his (to some observers, unduly conservative) judgment in R v Higher Education Funding Council, ex p Institute of Dental Surgery,Footnote 63 given on 30 July 1993. Sedley gave the judgment for Lord Justice Mann and himself. Michael Beloff was arguing for the quango, leading Cherie Booth. David Pannick was arguing for the Institute of Dental Surgery. Sedley's judgment allowed the quango to get away with not giving reasons for a grade in the research assessment exercise of 1992, even though ‘We agree with practically all of Mr Pannick's criticisms of the respondent's objections to giving reasons … It seems to us disingenuous to talk, as Prof Davies repeatedly does, about the impossibility of “disaggregating the collective view”, when that view was an aggregate view in the first place’.Footnote 64
Alternatively, it would be good for the book writing wing of the retired judge movement to study neglected judgments. For instance, Sedley castigates Denning claiming that, ‘The hate figures of the popular press – students, trade unions, squatters, prisoners – rarely, if ever, won their cases in Denning's court’.Footnote 65 Well, migrants suffer as such hate figures so one would be interested to read an analysis by Stephen Sedley of cases such as R v Home Secretary, ex p Phansopkar and Begum,Footnote 66 a radical administrative law decision, which illustrates Law and the Whirligig of Time. Around the time of the 1975 referendum on Europe, while the progressive Labour government was developing anti-discrimination legislation, a woman from India and a woman from Bangladesh took on the might of Roy Jenkins’ Home Office. Two of the judges profiled by Sedley, Denning and Scarman, sat with the conservative Lord Justice Lawton. The barristers representing Mrs Phansopkar and Mrs Begum were themselves refugees. The judges in the Court of Appeal all sided with them, invoking Magna Carta to insist that the government could not delay or deny their right of entry.
Could Stephen Sedley change his view of Denning or of his own judgments or of anything? We need another book.
Conclusions
Both these judges retired earlier than the statutory requirement – Sir Stephen at 71 and Lord Dyson at 73 – as they could have continued until 75.Footnote 67 The senior judiciary is going through a period of rapid turnover, because of the change in retirement age from 75 to 70 for judges appointed to the High Court bench after 31 March 1995. The Supreme Court, for example, had no changes in composition between the appointment of Lord Hodge in October 2013 and the retirement of the late Lord Toulson in September 2016, but between the summers of 2017 and 2020, nine out of twelve Justices will have retired and been replaced (some at 75 and some at 70), including two Presidents of the Court. We can therefore perhaps look forward to more such collections, which would be welcome, for as Dyson notes towards the end of the book:
Informing and educating both the public and executive about what goes on in the courts is clearly an important aspect of open justice administered in an open society. Increasing an understanding of what is done and, most importantly, why it is done is an essential element of securing public confidence in an independent judiciary and thereby the rule of law.Footnote 68
These collections provide an opportunity to understand and engage with the whats, whys and wherefores of the judicial role at a time of evolution for the judiciary and the law.
