Vol. 13 No. 2 (February 2003)
THE ENGLISH JUDGES: THEIR ROLE IN THE CHANGING CONSTITUTION, by Robert Stevens. Oxford and Portland OR: Hart Publishing, 2002. ix and 169 pp. Hardback, $ 45. ISBN 1-84113-226-8.
Reviewed by David Fraser, Department of Law, Brunel University
The introduction of the Human Rights Act, proposals to reform the House of Lords, and devolution in Scotland and Wales, under Tony Blair’s New Labour governments, have brought the English Constitution onto the front pages. The arcana of an unwritten Constitution have become, to a greater or lesser extent, part of popular discourse in England and elsewhere in the United Kingdom. Not least of the concerns of many is what appears to be the inevitable slide towards a new heightened and expanded role for the judiciary. In their recent study of the state of civil liberties law in the United Kingdom, Noel Whitty, Thérèse Murphy, and Stephen Livingstone explore the ways in which debate about the role of judges in a democracy has been a central element of jurisprudential and political concern. As they have stated, “The issue of judicialisation of governing power has been a staple of academic inquiry over recent decades and the resulting slew of commentaries makes it clear that judges, practitioners, academics, politicians and the media have sharply divergent views about the legitimate role of judges…” (2001, 39).
Robert Stevens has stepped into these debates with his intriguing, often insightful and occasionally frustrating study. Although the work is a mere one hundred and sixty nine pages (including index), Stevens manages to fit in an enormous amount of information and analysis. The book ranges from an historical introduction about the Act of Settlement and the resulting basic constitutional arrangements in place to this day (Chapter 1), to a study of the decline in judicial influence in the first sixty years of the 20th century (Chapter 2), to an examination of increased judicial activism (Chapter 3), and then to detailed discussions of the place and role of the judiciary under the Tory governments of Thatcher and Major (Chapter 4) and to a view of the judiciary under Blair’s régimes (Chapters 8 and 9). In between, Stevens offers a detailed discussion of the traditional jurisprudential and political debates surrounding the function of judicial review in a Diceyan system of Parliamentary supremacy, judicial independence and the vexed problems of balance of powers and separation of powers doctrines (Chapters 5, 6 and 7).
The particular strength of Stevens’ work lies in his ability to offer extensive descriptions of the various debates and actors involved in the controversies surrounding the English versions of the countermajoritarian difficulty in a way which is at once scholarly and accessible. His discussion relies heavily on contemporary accounts of the participants themselves, and he does not shy away from invoking media (particularly newspaper) accounts of the events and personalities involved. In this way, his discussion becomes not only relevant but lively and insightful. His examinations of the role of the House of Lords and the judicial members of the Upper House of Parliament and of the various Lord Chancellors are especially useful and often intriguing.
Of course, these institutional arrangements are at the heart of Stevens’ analysis and of current and ongoing debates about constitutional structures in England. Law Lords sit as appellate judges and participate, often surrounded by great controversy, in political debates in the House of Lords on legislation upon which they might reasonably be called to interpret at a later stage. The position of the Lord Chancellor is even more bizarre for outsiders to English constitutional structures. He (and he is always a he) is a member of the Cabinet (executive), a member of the House of Lords (legislative) and a member of the judicial branch of the Lords. As Stevens makes clear, the extent of actual conflicts in these constitutional arrangements has depended largely upon the personal preferences and political attitudes of individual Lord Chancellors and upon their relationships with other members of the judiciary and of the government of the day. This is, for an American reader, perhaps bizarre and almost beyond comprehension. For an English reader, however, the conflict is simply a part of the constitutional heritage of a great parliamentary democracy. A particular strength of Stevens’ analysis is his ability to contextualize and explain the implications and consequences of constitutional custom and practice in a manner which is, again, both sophisticated and accessible.
Similarly, Stevens offers vital insights into the reliance which various governments have placed on judicial commissions of inquiry. Judges are asked to engage in and use inquisitorial techniques and to offer social and political conclusions to controversial issues. Governments rely on notions of judicial neutrality and independence to parry complaints about their own policy failures. For example, a member of the judiciary has recently headed investigations into “institutional racism” in London’s police following the murder of black teenager Stephen Lawrence, and others are dealing with the Bloody Sunday killings in Northern Ireland. As Stevens notes, this often places judges in invidious positions. More often than not, careful analyses and policy and law reform recommendations which flow from such commissions are ignored and shelved either as being “too political” or, on the other hand, as being “impractical.” All readers will benefit from Stevens’ reporting and analysis of these and associated issues. Those interested in comparative constitutionalism in particular will enjoy the book. As New Labour faces up to its various commitments to constitutional reform, involving devolution in the cases of Wales and Scotland, and in a more complex fashion, Ulster, as well as an inexorable, if not painless, move to Europe, the study of English public law offers an experimental laboratory for constitutionalists and Stevens’ contribution can not be ignored.
This being said however, Stevens’ work is not entirely unproblematic. There is first the apparent self-imposed limitation of the book’s title and its reference to “English” judges. At some level this is perhaps misleading since Stevens does not eschew comparative analysis. He invokes examples from the United States, Canada, Australia, New Zealand and Israel for his discussion of the role of the judiciary in democratic governance. He is not unaware of the issues of devolution in the United Kingdom. Given the author’s keen awareness of the role of English judges in the evolution of constitutional law and civil liberties litigation in Northern Ireland and his comments about judicial inquiries in that “province,” one might have expected a more clearly articulated discussion of issues of “English” versus, for example, “British” identity and institutions in the present and future state of constitutional evolution and transformation. Similarly, the reader might be disappointed by the brevity of Stevens’ discussion of Scotland, devolution and the judicial role therein and thereafter. The focus does remain primarily “English,” and this might be annoying both to the Celtic sympathizers among his potential readers and to those who might be interested to find a discussion of emerging federal structures within the United Kingdom (and Europe) and the role to be played by the judiciary in such arrangements.
Other difficulties, more often in the form of lacunae, also arise. For example, while he is well aware of the dangers of over-generalization on the subject of the judiciary (p. 57), Stevens nonetheless occasionally falls into this very trap. He writes for example that “England today has a remarkably competent judiciary, marked by a bench the overwhelming majority of whose members are gracious, scholarly, imaginative, and fair compared with the 1950s” (p. 38). As a generalization, this is probably correct but again only as far as it goes. What is missing from this study is any careful and considered analysis of the structures of the judiciary and the legal professions from which the judges come. In terms of race, class, ethnicity and gender, the English judiciary is still a predominately white, middle-upper class, male body. Of course, there are obvious historical and social structural explanations for this. The Bar and Law Society from which the members of the judicial branch are chosen are elite and traditional institutions. Universities, as the current Labour government has made clear, have failed miserably in ensuring access to higher and professional education for the less privileged. Any work which proposes an increase in the constitutional role of the judiciary, as Stevens’ does, should, I believe, engage these and related issues in some more detail than is offered here.
In the end, Stevens seems more comfortable than others might be about the nature and changing role of the English judges. He lauds the emergence of judicial review, after decades of judicial deference to the executive and legislative branches and their subordinate institutions. He exults in an active judiciary rediscovering the Blackstonian tradition of common law expansion through adjudication and interpretation. He proposes a Supreme Court, an independent judicial body, to replace the current conflict-ridden structure of the House of Lords. I am not suggesting that Stevens is wrong or that current arrangements are either acceptable or constitutionally tenable as Britain (or England) moves into Europe. Instead, I simply urge a continuation and expansion of Stevens’ own careful and broad historical analysis to include a greater emphasis on the evolving nature of English, British and European constitutional democracy. Judges, lawyers, academics and politicians, are all citizens in the polity. Constitutional change must be democratically articulated and given concrete effect. Stevens advances the debate, but he would not pretend that discussion has ended.
REFERENCE
Whitty, Noel, Murphy Thérèse and Stephen Livingstone. 2001. CIVIL LIBERTIES LAW: THE HUMAN RIGHTS ERA. London: Butterworths.
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Copyright 2003 by the author, David Fraser.