Stephen Sedley

Stephen Sedley, a former appeal court judge, is co-editing an anthology of folksongs about crime and punishment.

Old Tunes

Stephen Sedley, 16 July 2020

The poet​ and songwriter Sydney Carter – remember ‘Lord of the Dance’? – wasn’t the only observer to notice that the 1950s British folk song revival was being accompanied, and occasionally drowned out, by the clang of cash registers. His song ‘Man with the Microphone’ began:

As I roved out one morningI was singing a country songI met a man with a...

Anyone​ who looks back today on the bitter row which erupted less than twenty years ago over the proposal to replace the House of Lords by a Supreme Court for the United Kingdom may wonder not only why anyone should have opposed the move but how it was that the upper chamber of the legislature had become the country’s final court of appeal in the first place.

At the dawn of the 21st...

In Court: The Prorogation Debacle

Stephen Sedley, 10 October 2019

For at least​ four centuries the courts have contested the claims of monarchs to untrammelled authority. ‘The king,’ Chief Justice Coke said in 1611, ‘hath no prerogative but what the law of the land allows him.’ Although the historic settlement of 1688-89, which gave us today’s constitutional monarchy, left in existence a wide swathe of prerogative powers,...

After six years as a judge – and, going by some of his judgments, a good judge too – Jonathan Sumption has returned to the theme of the deference owed by law to politics. It is his bad luck to have done so at a moment when the UK’s political process, both in and outside Parliament, has been in functional meltdown and moral decline, while both his own court and the lower courts have remained a source of constitutional principle and political stability.

Short Cuts: Equality Legislation

Stephen Sedley, 7 February 2019

If an employer​ has a policy or practice of never promoting black or female or Muslim employees, it doesn’t require much legal theory to recognise this as direct racial or sexual or religious discrimination. Nor does it require a great deal of sophistication to recognise that an employer who makes promotion dependent on a test – literacy perhaps – which is applied to all...

The title​ of the book is of course ironic: in spite of the clamour at the end of the Great War, the Kaiser was never tried, much less hanged. As Germany prepared to capitulate, Wilhelm II of Hohenzollern with his staff and family quietly crossed into neutral Holland, from where the Dutch politely but resolutely declined to extradite or expel him. Wilhelm lived on in exile for long enough...

‘The​ United Kingdom played a major part in drafting the convention,’ said the Blair government’s paper introducing the bill that became the 1998 Human Rights Act, ‘and there was broad agreement between the major political parties about the need for it.’ The Panglossian account of the 1950 European Convention on Human Rights – that it was essentially...

Short Cuts: Labour and Anti-Semitism

Stephen Sedley, 10 May 2018

When​ I was about eight my schoolfriend Harvey invited me to join his Anti-Jew Gang. I was born just after the outbreak of war, so this must have been 1947 or 1948. Harvey hadn’t the slightest idea what a Jew was, but since I was his friend it was evident I couldn’t be one. What he had picked up, presumably at home, was the vernacular anti-Semitism which had first excused and...

Confidence and Supply: Confidence and Supply

Stephen Sedley, 14 December 2017

Suppose​ Emmanuel Macron’s new party had found itself short of a majority in the National Assembly, and Macron had done a deal with the Corsican nationalists that in return for their votes he would steer well over a billion euros of subsidy to the Corsican economy. The French judge to whom I put this started laughing: ‘No – impossible – unconstitutional –...

Defining Anti-Semitism

Stephen Sedley, 4 May 2017

Shorn​ of philosophical and political refinements, anti-Semitism is hostility towards Jews as Jews. Where it manifests itself in discriminatory acts or inflammatory speech it is generally illegal, lying beyond the bounds of freedom of speech and of action. By contrast, criticism (and equally defence) of Israel or of Zionism is not only generally lawful: it is affirmatively protected by law....

When​ the government decided to appeal to the Supreme Court against the High Court’s ruling that ministers could not lawfully use the royal prerogative to leave the EU, many lawyers, myself included, thought it a hopeless enterprise. A court of three judges – the Chief Justice, the Master of the Rolls and Lord Justice Sales (who had been standing counsel to the government when at...

The Judges’ Verdicts

Stephen Sedley, 2 February 2017

Since 1689 the Crown has been stripped of the power of ‘dispensing with laws or the execution of laws’. Whether diplomatic withdrawal from the EU treaties is regarded as turning off the tap or dismantling the plumbing, its purpose and effect would be to dispense with extant legislation which makes EU law part of the UK’s legal system. That is something which on principle only Parliament has authority to do.

Short Cuts: Anonymity

Stephen Sedley, 19 January 2017

The​ Italian newspaper Il Sole 24 Ore recently outed (or claimed to be outing) the writer of the Neapolitan novels concealed behind the pseudonym Elena Ferrante. Has the press – or anyone else – any moral right to do this? Is an author’s identity an aspect of her personal privacy, to be disclosed or withheld as she chooses? Or is it information which belongs as much in the...

Resistance to Torpor: The Rule of Law

Stephen Sedley, 28 July 2016

When​ the Earl of Bute resigned as prime minister in April 1763 it looked as if the North Briton, a paper whose vituperative attacks had dogged his administration, had achieved its ambition and would now cease publication. But a week later George III opened the new Parliament with a speech from the throne which, by its support for the peace terms being negotiated with France, reignited the...

Professional Misconduct

Stephen Sedley, 17 December 2015

Not​ for the first time, Mr Justice Peter Smith, a judge of the Chancery Division of the High Court, got his personal life and his judicial work entangled. This time it concerned his luggage, which had gone missing on a BA flight from Florence. While the luggage was still missing, BA appeared in his court as a litigant and the judge demanded to know what had happened to it; he stood down...

In​ 1944, as Richard Kay records, an optimistic litigant challenged the validity of a Victorian statute under which he was being sued, on the ground that Queen Victoria, like all her predecessors since 1689, had had no title to the throne. The argument, which would have wiped the statute book almost clean, was dismissed without much ceremony; but in 1688 and 1689 it occupied the centre of...

The Right to Die

Stephen Sedley, 27 August 2015

When suicide was decriminalised in 1961, assisting suicide continued to be a crime. This was in part an acceptance of the theological view of suicide as murder, but it was also a recognition of the difficulty in many cases, with the main actor by definition unable to testify, of distinguishing assisted dying from culpable homicide. The simple binary system that resulted, however, failed to take account of cases in which the deceased’s wish to die was explicit, considered and rational, and the need for help in accomplishing it demonstrable.

I have no books to consult: Lord Mansfield

Stephen Sedley, 22 January 2015

In March​ 1718, 13-year-old William Murray, the 11th of Viscount Stormont’s 14 children, set off from the family seat at Scone, near Perth, on a pony. The journey to London, which he made alone, took him almost two months, and it is probable that he never saw Scotland again. Although it was a bare three years since the first Jacobite Rising had attempted to place the Old Pretender,...

Not in the Public Interest

Stephen Sedley, 6 March 2014

In 1916 the secretary of the Anti-German Union, Sir George Makgill, a Scottish baronet of extreme right-wing views, brought judicial review proceedings to remove from the Privy Council two wealthy Jewish philanthropists, Sir Ernest Cassel (who had actually converted to Catholicism) and Sir Edgar Speyer, on the ground that, although both were British subjects, they were not British-born. A full court of the King’s Bench, presided over by the chief justice, Lord Reading, was assembled to hear the claim. It was opposed on behalf of the Crown by the attorney-general, F.E. Smith.

Beware Kite-Flyers: The British Constitution

Stephen Sedley, 12 September 2013

Writers on the British constitution have always faced the problem that, contrary to what Mr Podsnap thought, it cannot simply be held up to the light and admired. The constitution is simultaneously a description of how, for the moment, we are governed and a prescriptive account of how we ought to be governed. In both respects (the former much more than the latter) it undergoes constant change; and there are concerns, highlighted by the radical changes currently being made to the legal aid system, that the process may be accelerating into a critical and damaging phase.

After Leveson

Stephen Sedley, 11 April 2013

The Privy Council, which will now be responsible for issuing a royal charter setting up a panel to vet the independence of a new press regulator, started licensing books in 1538. In 1557 a royal charter gave the members of the Stationers’ Company a monopoly of printing. In 1588 the anti-episcopal Marprelate Tracts (one of whose authors, John Penry, was executed for publishing them)...

The states composing the Council of Europe, now 47 of them, have their own supreme court, the European Court of Human Rights, which – not unlike its US counterpart – has come under increasing fire for interfering unduly in member states’ affairs and trying to make one size of human rights compliance fit all. At a theoretical level there seems something wrong with this...

Construct or Construe: Living Originalism

Stephen Sedley, 30 August 2012

Living originalism? The heart sinks. Is this going to resemble a treatise on secular spirituality or tabloid ethics or some other well-meant oxymoron? To a degree, the despondency is justified. How can you breathe life into a text if its meaning remains what it was in 1787 or 1868? Jack Balkin, who holds one of America’s premier chairs of constitutional law, argues that you can. He is...

Malice! Malice! Thomas More’s Trial

Stephen Sedley, 5 April 2012

Beatification, which finally came to Thomas More in 1886, and canonisation, which had to wait until 1935, were only the icing on the commemorative cake. He had had, both during his life and since, a deserved measure of admiration as a scholar, a lawyer, a writer and a politician; for there is much in Robert Bolt’s adulatory A Man for All Seasons which reflects what we know of More. But...

Judicial Politics

Stephen Sedley, 23 February 2012

Although it is unusual, there is nothing novel about a member of the Bar being appointed directly to the UK’s highest court. When the highest court was the appellate committee of the House of Lords, appointments to it were occasionally made in this way, sometimes to good effect. Among the last, now more than half a century ago, were James Reid QC, a Scottish Tory MP who, as Lord Reid, became one of the best judges of the postwar years, and Cyril Radcliffe QC, a distinguished public servant and barrister.

For more than three hundred years the UK’s constitution has functioned remarkably well on the basis of the historic compromise reached in the course of the 17th century. The 1689 Bill of Rights forbade the impeachment or questioning of parliamentary debates and proceedings ‘in any court or place out of Parlyament’. Parliament in return has made it a rule, enforced until now by the speakers of both Houses, that it will not interfere with the decisions of the courts, whether by anticipating their judgments or by attacking them. If Parliament does not like what the courts do, it changes the law. The sovereignty of Parliament as the final source of law and the sovereignty of the courts in interpreting and enforcing the law are the twin pillars on which democracy and the rule of law in the UK rest. It was the courts themselves which, in the 19th century, extended the privilege of Parliament to cover any fair and full report of what was said there even if it was libellous.

Plimsoll’s Story

Stephen Sedley, 28 April 2011

Defying the advice of the King of Hearts to the White Rabbit, the Oxford History of the Laws of England began in the middle, with the publication in 2003 of its magisterial sixth volume, written by the general editor, John Baker, and covering the years 1483-1558. It then went back to the beginning, with R.H. Helmholz’s opening volume on early canon law. The rest was silence, until in...

Few people in this country, I would guess, reading this headnote to the official report of a recent decision of the US Supreme Court, would regard it as a difficult case:

After a West Virginia jury found respondents, a coal company and its affiliates (hereinafter Massey), liable for fraudulent misrepresentation, concealment, and tortious interference with existing contractual relations and...

Enemies of All Mankind: Pirates

Stephen Sedley, 24 June 2010

When Germany’s ultimatum – delivered, as the Kaiser had explained, ‘only with the friendliest intentions towards Belgium’ – expired in August 1914, von Emmich’s infantry crossed the frontier in parade-ground order, accompanied by horse-drawn field kitchens with fires burning and army cooks stirring the regimental stew.

They don’t wage war like that...

On the Move: Constitutional Moments

Stephen Sedley, 8 October 2009

When you pick up The New British Constitution and ask what new constitution that might be, one answer is that the British constitution, because it is always changing, is always new. But the veteran political scientist Vernon Bogdanor goes further. His thesis is that since the election of the Blair government in 1997 the pace and depth of constitutional change have increased to a point where a new shape of the state, though still fuzzy in outline and incomplete in detail, can be discerned and described with some confidence.

When the Archbishop of Canterbury suggested in a lecture last February that there was room within national legal systems for some degree of religious law for members of particular faiths, the country shook with indignation – not at what the prelate had actually said, but at the menacing story the broadcast and print media extracted from it. The Sun’s uniquely helpful contribution...

No Ordinary Law: Constitution-Makers

Stephen Sedley, 5 June 2008

If you had asked an 18th or 19th-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,...

Second Time Around: In the Court of Appeal

Stephen Sedley, 6 September 2007

An appeal, you might think, is an argument that a lower court has got it wrong. Whether you would consider it to be ‘a piece of linguistic shorthand which accepts the existence of a penumbra of uncertainty in order to achieve universal comprehensibility at a very low level of exactitude’ is more doubtful; but what these authors seem to have in mind is that even a right of appeal...

Diary: Judge Dredd

Stephen Sedley, 7 June 2007

Q: How many judges does it take to change a light bulb?

A: Change?

Barely three centuries after the full-bottomed wig went out of fashion, and hardly two centuries after the sartorial demise of the short wig, Her Majesty’s judges are going to sit with bare heads. Well, almost. The short ‘bench’ wig will still be worn on formal occasions such as the Lord Chancellor’s...

No Law at All: The Governor Eyre Affair

Stephen Sedley, 2 November 2006

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...

There are some who will have taken a sadistic pleasure in the failure of the recent attempt by the News of the World’s undercover reporter Mazher Mahmood, the ‘fake sheikh’, to prevent George Galloway from publishing photographs of him on the internet. But those who are keen to see privacy protected by law were making a mistake if they cheered or jeered at the court’s refusal to protect Mahmood from the kind of exposure to which his paper regularly subjects others. The real coup would have been if the court had accepted his counsel’s argument that the unwanted publicity violated Mahmood’s right to respect for his private life and Mahmood v. Galloway had become authority for a free-standing right of privacy.

When I read for the English Bar in the 1960s, the legal history lecturer stopped when he reached 1649 and explained that he was now moving directly to 1660, because everything that had happened between the trial of the king and the restoration of the monarchy was a nullity. By this simple and efficient process John Cooke, the barrister who prosecuted Charles I, has been airbrushed from...

A modern criminal trial can be exceedingly inconvenient. The more fairly conducted it is, the less certain the outcome. The accuser can end up all but in the dock; the accused may walk away from a true bill. Churchill, well aware of this, wanted the Nazi leaders, when they were finally captured, to be taken out and shot. Roosevelt initially agreed. It was Stalin, who had found that trials...

In principle, DNA analysis has made it possible to establish to a very high degree of probability the human source of even a minute quantity of biological matter – most notably blood, semen or saliva. The science is complex, and the degree of certainty not absolute, especially when it is necessary to differentiate between twins or siblings. But it has begun to revolutionise the process...

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...

In a crowded restaurant a bottle of wine arrives at our table with a note: ‘Por tratar de juzgar a Pinochet y hacer justicia en nuestro país’ – ‘For your efforts to bring Pinochet to trial and to do justice in our country.’ Wherever we go in Chile with him, people recognise Juan Guzmán as the judge who has indicted a series of high-ranking officers...

Howzat? Adversarial or Inquisitorial?

Stephen Sedley, 25 September 2003

Three hundred years ago an Englishman charged with, say, robbery could expect to be interrogated by a local magistrate, held in jail until the King’s justices next rode in on circuit, arraigned before a jury of local property-owners on an indictment he had never seen, and tried in less than an hour. He would not be allowed legal representation even if he could afford it. He had no right...

On 11 August 1942 Joseph Bursztyn, a doctor in the French Resistance, was executed as a hostage in reprisal for Resistance attacks on German troops occupying Paris. The previous month his wife had been arrested by the Vichy police and deported to the German death camps. Their small daughter, Claire, who was saved by neighbours, this summer saw Maurice Papon, who was responsible for her...

I used to argue that advocates of the Convention resembled the Brooklyn woman who came out with chicken soup for an apparently dead man in the road, and when a doctor said ‘Lady, it won’t help,’ replied: ‘Mister, it won’t hoit.’ Now, I confess, I am less sure.

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.

William Blackstone, Commentaries

If you were sitting down today to set out the principles of a good system of criminal justice, with a blank sheet of paper and all the wisdom of hindsight at your disposal, you would probably start, as I would, with...

Turning on Turtles: fundamental values

Stephen Sedley, 15 November 2001

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...

Settlers v. Natives

Stephen Sedley, 8 March 2001

It’s not too hard today to recognise the sovereign individual, supposed master of his fate and captain of his soul, as a sociopath. The idea of the sovereign state, by contrast, still commands intellectual allegiance in spite of evidence that its day is done. This is not to say that states do not continue to exist which both assert and possess the power to determine what happens inside...

The Right to Know: freedom of information

Stephen Sedley, 10 August 2000

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 the newspapers: in Czechoslovakia in the 1960s nobody believed that US aircraft were dropping cluster-bombs and napalm on Vietnam because the official newspaper reported daily that they were. Because our experience is less uniformly bad, we tend to give initial credence to what we are told. Yet repeated revelations over recent years that people in whom we put our trust have been lying not only to the media but to Parliament and the courts have shaken our confidence in our own scepticism.

From The Blog
7 July 2014

A decade after Dylan Thomas’s death, a lawsuit was brought by Caitlin Thomas on behalf of his estate to recover the manuscript of Under Milk Wood from Douglas Cleverdon. It was Cleverdon who had produced the play for BBC radio and had now put the manuscript on the market. The claim failed: the judge, Mr Justice Plowman, accepted Cleverdon’s case that Thomas had made him a gift of the manuscript. The story as it emerged at trial was this.

Diary: Judges’ Lodgings

Stephen Sedley, 11 November 1999

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.‘

When, some years ago, the Bar’s dining room at the House of Lords was closed and barristers appearing before the Law Lords were given permission to use the Peers’ dining room, younger barristers became quite badly disoriented by seeing elder statesmen who they were confident had been dead for many years lunching at the next table. What they didn’t always appreciate was that it was thanks to a similar cryogenic process that the Law Lords themselves were hearing appeals – as they still are. When the Victorians set about rearranging the legal furniture, they legislated to abolish the appellate jurisdiction of the Upper House (a particular anomaly at that time, since it was only by convention that non-lawyers in the House abstained from sitting on appeals). They created a Supreme Court with a Court of Appeal at its apex for England and Wales, leaving Scotland and Ireland with their own separate systems. Limiting the majority of appeals to a one-stop process seemed a logical way of professionalising the judiciary and saving costs. The Supreme Court of Judicature Act, abolishing the Lords’ appellate jurisdiction, was accordingly passed in 1873; but before it came into force, in 1876, a further Act was pushed through, against the advice of both the Liberal reformer Lord Selborne and the Conservative reformer Lord Cairns, restoring the Lords’ nationwide appellate jurisdiction (apart from criminal appeals from Scotland) and creating the office of Lord of Appeal in Ordinary to ensure that only real judges would sit in future. That it was, in Robert Stevens’s words in the Dickson and Carmichael volume, ‘the work of a group of right-wing Tory MPs who cared nothing for law, the courts or litigants, but were anxious to prop up the hereditary principle by creating a group of judges who might balance the bishops’ is of less importance now than the fact that the Appellate Committees of the House of Lords have established themselves as one of the world’s major constitutional courts.’‘

‘One law for the Lion & Ox,’ wrote Blake, ‘is oppression.’ He was describing in his oblique way what Anatole France a century later described more brutally as ‘the majestic even-handedness of the law, which forbids rich and poor alike to sleep under bridges, to beg in the streets and to steal bread.’ France’s English contemporary Lord Justice Mathew made the point in more genteel terms: ‘In England,’ he said, ‘justice is open to all, like the Ritz.’ The Early Victorian poet Thomas Love Peacock had noted the unequal impact of the Sunday observance laws:‘

This beats me: The Drafter’s Contract

Stephen Sedley, 2 April 1998

‘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. These and other quotidian exercises are the subject of judgments and commentaries which try to bring ordered methods to bear on the translation of a text into an outcome – that is to say, on trying to give a law its proper effect.’‘

What Bill and What Rights?

Stephen Sedley, 5 June 1997

There is no reason in theory why the current relationships between legislature, courts and executive government should not continue indefinitely. The tensions between the component elements of the state have never in three centuries reached the point of fracture; indeed, because each element depends on the others, there is a governing incentive not to let this happen. If such à balance were to be upset, it would almost certainly be from outside: at its crudest, by a coup; at its most insidious, by the absorption first of government and Parliament and then of the judiciary by an initially legitimate but unscrupulous political force. In constitutional terms this was the story both of the Soviet Union and of prewar Germany: the turning-point in each case was the collapse of freestanding political, administrative and judicial institutions into a unitary state machine controlled by a single party. No prescriptive document can stem such a tide: the Nazis simply swept the Weimar Constitution aside, while Stalin’s 1936 Constitution was a living lie. But democracy is not like an electric light, either on or off: it can flourish, or it can be cramped and distorted. Its ability to thrive is more often a question of degree than of kind.’

Persons Aggrieved

Stephen Sedley, 22 May 1997

There is a fairly obvious sense in which the law conditions or even determines, rather than simply reflects, a society’s shared sense of right and wrong (or – which is not the same thing – acceptable and unacceptable). The clearest instance in this generation has been the equality legislation, which has not simply placed on the statute book a prohibition against discrimination on grounds of race or gender, but has generated a fundamental change in the common sense of what kinds of conduct and language towards one’s fellow citizens are acceptable or right. This is statute law at its best – picking up and consolidating an incipient and fragile change of social mood, giving it legitimacy and backing it with legal redress. We have certainly not eliminated racial and sexual discrimination, but few would dispute that things would be markedly worse without the legislation.’

The Common Law and the Constitution

Stephen Sedley, 8 May 1997

It is conventional wisdom, at least among lawyers, that the Constitution of the United Kingdom is in its essentials the creation of the common law – an accretion of legal principles derived from judicial decisions which determine for the most part how the country is to be run from day to day. Apart from the historic texts – Magna Carta, the Bill of Rights – statutes were until this century regarded, by lawyers if not by Parliamentarians, as dangerous reefs in the great ocean of the common law, to be observed chiefly in order to circumnavigate them. During this century the body of statute law has broken the surface at many points, forming sometimes small islands – such as the unnecessary but minor incursion of the legislature into the judge-made law of judicial review – and sometimes great land-masses like the modern law of real property, supplanting the common law and equity, or whole continents of social and economic provision for which the common law itself has no remit.

Big Lawyers and Little Lawyers

Stephen Sedley, 28 November 1996

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; 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. In Hong Kong yet worse has happened: an attempt in the best colonial tradition of demented heroism to codify the English common law in Chinese (something nobody has yet done in English) in time for the handover in 1997 has foundered on problems of translation. Initial worries about the Mandarin equivalent of issue estoppel and certiorari were overtaken by the catastrophic rendering of barrister and solicitor as ‘big lawyer’ and ‘little lawyer’ respectively, giving lasting offence to Hong Kong’s solicitors and bringing the project ultimately to a standstill.

Extra-Legal

Stephen Sedley, 19 October 1995

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 17-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.’

Rights, Wrongs and Outcomes

Stephen Sedley, 11 May 1995

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 about 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.’

Doctor in the Dock

Stephen Sedley, 20 October 1994

I used occasionally to lecture to doctors at the Institute of Orthopaedics on giving expert evidence. With a hierarchical propriety that would have done the legal profession credit, the audience would arrange itself in order of seniority, consultants in the front row, registrars behind and so on. The occasion I enjoyed most was when I stayed to listen to the next lecture, ‘On Alleged Medical Negligence’, delivered by George Bonney, a laconic orthopaedic surgeon with long experience on the governing body of the Medical Defence Union. His tongue-in-cheek thesis was that the invention of penicillin had been a disaster for doctors, who until then had been unable to cure much other than malaria and syphilis (‘and nobody was going to get up in court and say: “That man failed to cure my clap.” ’) Where once the profession’s main therapeutic resource was the bedside manner, and the patient’s principal response gratitude, Bonney argued, people now expected to be cured and would sue if they were not.

Above it all

Stephen Sedley, 7 April 1994

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. More fearsomely, there’s public opinion, stoked by a less than obsequious press – although the press can wound more easily than it can strike. And what if a judge’s indolence or spleen has cost someone their liberty or their job or their home? If the author of the disaster had been anybody else the victim might have expected to be able to sue for compensation: but nobody can sue a judge, however incompetent or even malicious, for anything which he or she has done as a judge. A doctor, an architect, a solicitor – certainly; a barrister – well, sometimes; a magistrate, rarely; a judge, never. In fact (though Abimbola Olowofoyeku has uncharacteristically missed this case) in 1746 the Chief Justice of the Common Pleas gave judgment for £1000 damages in favour of a Lieutenant Frye against the president of a court martial which had wronged him, and then encouraged Frye to sue the other members. When they protested through the Lords of the Admiralty to the King, the Chief Justice had the whole lot of them arrested for contempt and released them, when they apologised, with the warning: ‘Whosoever set themselves up in opposition to the law or think themselves above the law will find themselves mistaken.’’

Whose Justice?

Stephen Sedley, 23 September 1993

It used to be said in Whitehall that the first job of a royal commission was to lay down a decent cellar. Royal commissions were grand affairs, the Rolls Royces of public deliberation, with a pedigree almost a thousand years long. Some four hundred of them were set up during the 19th century, and almost a hundred and forty in the first three-quarters of this century. But from 1977 until the release of the Birmingham Six in 1991, not one royal commission was appointed. It had become the proclaimed task of government to govern, not to appoint bodies to agonise about what should be done. In a lecture I gave in 1988 I found myself speculating that this magnificent beast might be facing extinction. It is, after all, only the noblest species of quite a large genus which includes Parliamentary select and standing committees (these having the considerable advantage that the government of the day can exercise some control over them), inquiries set up by resolution of both Houses of Parliament (rare creatures, of which the Lynskey Tribunal and the Aberfan Inquiry are examples) and inquiries under specific statutory powers (policing, childcare, medical services). In addition any public body has the inherent power to appoint anyone to inquire into anything on its behalf (prominently at the moment, the Scott Inquiry into the Matrix-Churchill affair). Even the coroner’s inquest is a form of public inquiry. Together, these inquiries form a considerable tranche of constitutional practice, more catholic and deliberative than litigation, less partisan and more judicial than political debate; and because nobody has a right to a public inquiry, they are a flexible instrument of government which can be used to alleviate rather than increase embarrassment. Accordingly, at moments of major concern they have an important constitutional role in reassuring the world that the state is examining the entrails and that all will shortly be well.

When judges sleep

Stephen Sedley, 10 June 1993

Every so often, poking around in the law’s attic for something you need, you come across a piece of legislation or a report of a case which still has enough grass and twigs sticking to it to hint at the life behind it. Researching a case not long ago about public rights of access to Fylingdales Moor, it dawned on me that behind the opaque language of the successive Defence Acts and Military Lands Acts which from the 1840s onwards had handed huge tracts of land to the military for practice and manoeuvres, lay a widespread struggle, in and outside Parliament, to keep the commons open. It resulted in the inclusion of a proviso forbidding the predecessors of the Ministry of Defence to close off any rights of common, and it gave the Greenham women the final satisfaction of striking down the bye-laws under which they had repeatedly been prosecuted for entering land in breach of bye-laws which, it turned out, had been illegally made. It also gave the new Lord Chief Justice an example, for his Dimbleby Lecture, of the law’s ability to play a straight bat.

Sorry to decline your Brief

Stephen Sedley, 11 June 1992

The absurdity of ex-judge James Pickles is not that, the son of a mayor of Halifax and himself an Oxford graduate, he rails endlessly against the domination of the Bench by the Oxbridge upper middle class. There’s nothing wrong with being a traitor to one’s class. As the left-wing QC D. N. Pritt told the right-wing Labour leader Ernest Bevin, it was the only thing the two of them had in common. No, what’s odd about Pickles is that, as his book repeatedly reveals, he is an unimaginative authoritarian who has somehow managed to break all the rules in his private war against unimaginative authoritarians.

Free speech for Rupert Murdoch

Stephen Sedley, 19 December 1991

It has taken 12 years of Thatcherism to disrupt the extraordinary complacency of the British about then 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 19th and 20th 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. While these prized liberties were being imported and built on by newer nations, they were being continuously eroded in the land of their birth. While British workers led the way in founding unions, British judges led the way in outlawing them, until Parliament intervened. While British radicals and freethinkers spoke their minds, British judges devised new ways of silencing them. The Britain which in 1899 led the way in substituting reformation for punishment as the aim of imprisonment has since led the way in over-long sentences served in foul and overcrowded gaols. The foundation in 1934 of the NCCL was a barometric indication of the state of civil rights and the rule of law when Margaret Roberts was still a child.

Diary: On the Guildford Four

Stephen Sedley, 9 November 1989

At almost exactly the same time as the Police were fitting up the Guildford Four, Richard Nixon was discovering that a shredder was a far more important piece of equipment than a photocopier. Late-night shredding parties have since become a feature both of US Administrations and of certain industrial enterprises as the step of judicial investigation approaches. True, not even the shredder was able to keep the CIA’s records from the Ayatollah’s reconstruction brigade, though no doubt embassy equipment has now been upgraded to include incinerators. But the preservation by the Surrey Police of a series of drafts of the ‘voluntary’ confessions attributed to the Guildford Four beggars belief. Somehow the bureaucratic mentality which forbids ever throwing away a piece of paper seems to have triumphed not only over sedulous corruption but even over simple self-preservation.

Breaking the Law

Stephen Sedley, 18 May 1989

Connoisseurs of fine ironies will be slapping their thighs at the sight of the Bar and the Government with their teeth sunk in each other’s legs, the former egged on by the judiciary, the latter by Dennis Skinner. It’s a fair guess that three-quarters of the Bar are loyal Tory voters. Yet how many of them, and indeed of their colleagues in the centre and on the left, had understood that Thatcherism is not just a tougher brand of Conservatism? What patrician Tories despise as the mentality of the Grantham grocer (as their parents despised Hitler for his vulgarity rather than his politics) is in truth a gut ideology which has no time and no room for any power élite that claims its status as a matter of right. Privilege, inequality, selfishness, exclusivity: these are of course important values, but they are to be earned in a cut-throat marketplace, not gerrymandered in the collegiate seclusion of the Inns of Court.

Keeping mum

Stephen Sedley, 2 March 1989

‘There is among the many departments of our well-ordered state a department which would be known if we were Chinese as “The Board of Things to be Known and Not to be Known”.’ Hilaire Belloc, writing in 1925 a satire on England as he imagined it would be in 1953, accurately linked the mandarin élitism of the Civil Service with its determination to control the supply of public information. What is new in the present decade is the assumption of power by a government which shares this determination but which also has definite and disturbing ends in view. Nevertheless the formal processes of public dialogue are still in place, and White Papers and published Bills form a traditional part of them.

When the judges assembled to compose a Loyal Address to Queen Victoria on the opening of the Law Courts, the draft before them began: ‘We your judges, conscious as we are of our manifold defects …’ The Master of the Rolls exploded: ‘I am not conscious of having manifold defects.’ Lord Justice Bowen, who was a scholar with a sense of humour, suggested, to mollify him, that the Address might begin: ‘We your judges, conscious as we are of each other’s manifold defects …’ I have to admit, in relation to the subtitle of Professor Zander’s book, that I was not conscious that the legal system was in ferment. But a lot depends on your point of observation. From inside a deeply conservative and complacent profession almost anything can look like the end of the world, starting with the change from foolscap to A4 stationery. I recall the leader of the Bar a decade ago alerting us by circular letter to the appointment of a Royal Commission on Legal Services, and describing criticisms of the Bar which had not yet been advanced to it us ‘ill-informed’. In our divided profession we find change upsetting and criticism unwelcome, unless they happen to affect the other side of the profession.

Diary: At the Courtroom

Stephen Sedley, 5 March 1987

The courtroom process keeps its perennial hold on lovers of drama at all levels. At tabloid level it provides revelations of human depravity which nurture every generation’s belief that standards are sinking to previously unknown depths. At the level of high art it is a crucible in which to purge the dross of events and distil essences of truth. Novelists find courtroom proceedings a valuable device for bringing a story to a head and a conclusion: but in real life a judgment or verdict is far more often a stage in a painful odyssey, or even the start of one, than its resolution.

Who didn’t kill Carl Bridgewater?

Stephen Sedley, 9 October 1986

The legal process, at least in English law, is a quite inadequate instrument for arriving at the truth about a crime. This is not necessarily an adverse comment. There is justification for requiring that if the state accuses a citizen of a crime it must prove it in an adversarial process to the full satisfaction of at least ten jurors. And this is why criminal trials are not designed to arrive at anything so baffling or protean as the truth: their sole purpose, it has been said, is to answer the question ‘Howzat?’ Paul Foot’s question, who killed Carl Bridgewater? was not the question before the jury which in 1979 at Stafford convicted three men and a boy of shooting in cold blood a 13-year-old lad who had evidently stumbled on a burglary at Yew Tree Farm in Staffordshire in the course of his newspaper round. The question for them was simply whether the evidence before them satisfied them that the four men in the dock were guilty of the killing. Put like that, the distinction appears to be without a difference, and so it is in a great many cases. Foot’s energetic, passionate and meticulous inquiry into the Bridgewater murder, however, has once again exposed the cleft which can occur between the two. He has not been able definitely to answer his own question: but he has been able to show beyond a peradventure that if a jury had known what is now known about the case, it would not have inculpated the three men serving life sentences and the fourth who has died in gaol.

Letter

At the Corner House

9 February 2020

Rosemary Hill’s evocative piece about Lyons Corner House brought to mind the time in the 1950s when my uncle Fred was in Gloucester Royal Infirmary (LRB, 20 February). In the next bed was an old lag from the local prison. Uncle Fred asked him what he was in for. ‘Oh nothing much,’ he said. ‘I just popped into Joe Lyons for a cup of tea and an overcoat.’When the Lyons family’s...
Letter

The Rule of the Judges

10 October 2019

Martin Mears’s letter about my article supporting the Supreme Court’s decision in the prorogation case, Miller (No. 2), is so full of errors and inconsistencies it’s hard to know where to start (Letters, 7 November). Let me set aside his fanciful list of alternatives to judicial review (impeachment; ignoring the prorogation) and his adulatory reference to the composition of the High...
Letter
It’s upsetting to learn from Daniel O’Neil that law students all over the Commonwealth are required to learn, or at least to study, the wording of Calouste Gulbenkian’s testamentary provision for his son Nubar (Letters, 9 May). This is apparently because the law lords’ decision – namely, that the wording of the trust set up by the will was not too imprecise to be workable...
Letter

Dumb Insolence

3 January 2019

Seamus Perry is not quite right in saying that Shelley was expelled by University College, Oxford for atheism (LRB, 3 January). It was no secret that Shelley and his friend (and future biographer) Thomas Hogg were responsible for the anonymous pamphlet The Necessity of Atheism, which the High Street booksellers Munday and Slatter had displayed. But the college governing body’s minute for 25 March...
Letter
Neve Gordon mentions the definition of anti-Semitism ‘adopted by the current UK government’ and its accompanying list of examples (LRB, 4 January). I’d like to add a word about its origins.In 2005 a working party of the European Monitoring Centre on Racism and Xenophobia, an EU institution, produced a forty-word ‘working definition’:Anti-Semitism is a certain perception...
Letter

UN Nightmare

7 November 2013

On the subject of simultaneous interpretation, I once heard Peter Ustinov recount, apparently from a primary source, the arrival in Algiers of the first Chinese ambassador following the end of the Cultural Revolution. Since it was an important moment, the entire diplomatic corps turned out on the tarmac. The UK ambassador delivered a speech of welcome which was relayed to the Chinese envoy by his interpreter....
Letter

Another New Iniquity

12 September 2013

Stephen Sedley writes: If Karon Monaghan will reread what I wrote, she will see that it was not a call to put litigants on some kind of taxi-meter for using the courts. I was pointing out that if government was serious about cost-cutting rather than about simply disabling its antagonists, its own philosophy would take it down this road – a road which, as Monaghan points out, it has already embarked...
Letter
David Elstein now seeks to justify the breach in Parliament of court orders on the ground that conscience may drive members to defy ‘injunctions based on a miscued Act’ (Letters, 28 July). He appears to believe the tabloid myth that the Human Rights Act and the Convention routinely protect privacy at the cost of freedom of expression. I would be interested to see a single privacy judgment...
Letter
Bernard Waites’s account of the judicial sabotage of the international ban on slave-trading following the Napoleonic Wars is perfectly correct, but it does not falsify what I wrote (Letters, 8 July). It was indeed the case that slaving became assimilated to piracy; but, like the common law prohibition of slave-holding in the previous century, this took decades to achieve in the face of sometimes...
Letter
Bernard Porter is surely right to doubt Carlo D’Este’s assertion that Churchill (or any other individual, come to that) ‘was the first to introduce marching songs’ (LRB, 27 August). Marching songs must have been around for as long as troops have been required to march in step. William III’s troops marched in 1688 to ‘Lillibulero’, and it is likely that the...
Letter

The Power of Pardon

26 March 2009

Tom Bingham, in his illuminating piece on the use of executive pardons here and in the US, suggests that, while the process is alive and kicking in the US, it has become either regularised by law or disused here (LRB, 26 March).I hope he is right. But there was disturbing evidence of its continued use and potential abuse in the Carl Bridgewater murder case in the 1980s. When the Home Secretary first...
Letter

After Leveson

8 June 2006

Neil Mullin, himself a distinguished trial lawyer, has a point when he draws attention to the need for profitable libels to be adequately deterred (Letters, 25 April). But there is a real problem in allowing a plaintiff who has already been compensated for the insult and had his legal costs reimbursed to pocket a further large sum of money intended to punish the defendant.The case for regulation, whether...
Letter

Mind your DNA

20 January 2005

Thomas Davis (Letters, 3 February) and Adrian Bowyer (Letters, 17 February) both point out something I went to some trouble to point out in my article: that being able to identify far more of the DNA found at the scene of a crime will by itself simply enlarge the initial range of suspects, all but one or two – perhaps even all – of whom will be innocent. They regard this in negative terms,...
Letter
Maurice Vile may have misunderstood my point (Letters, 21 October). There is, as he says, a constitutional veto possessed by the president of the US. It is provided by article 1(7) of the Constitution. Its effect is that the bill returns to Congress, where a two-thirds majority will override the veto.But what I was speaking of when I referred to the presidential power of suspending legislation was...
Letter

In the Breach

25 September 2003

E.S. Turner asks why, in a recent review, I ‘join in the tease’ of referring to an otherwise unidentified judge as ‘she’ (Letters, 23 October). Shouldn’t he ask why elsewhere in the article I refer to the otherwise unidentified accused as ‘he’? Or isn’t that a tease?
Letter

What MPs Read

13 December 2001

About forty years ago I met Robert Tressell’s daughter, Kathleen Lynne (she died in 1988 at the age of 96). The picture she gave of her father, Robert Noonan, was a complex one. He was a signwriter and housepainter by trade, admiring William Morris and Walter Crane and specialising in mural decoration. His family had apparently been well off. He had dropped out of formal education, but he insisted...
Letter

Call that a breakfast?

17 February 2000

The point, pace Alan Saunders (Letters, 13 April), is that the shrink is Jewish. But to give him the punchline ‘That you call a breakfast’ is to make him a Yiddish speaker. That’s where the syntax comes from. it’s not, or not just, a question of rhythm. As a Yiddish speaker, however, he’d be more likely to say: ‘This’ – dus – ‘you call a breakfast.’
Letter

Murphy’s Law

22 May 1997

Ron Haggart of Toronto (Letters, 17 July) took issue with the statement in my article (LRB, 22 May) that the Canadian ‘persons’ case decided by the Privy Council in 1929 concerned the election of Canada’s first woman senator. It has taken me a little while to check the facts. Even then I would probably not be responding at this distance of time had Haggart not begun his letter with...
Letter

In a narrow pass

19 November 1992

I am not permitted to respond to Derek Hirst’s personal remarks about my judicial doppelgänger (LRB, 19 November), but I wish to say something about his suggestion that my co-editor and I have tinkered with the evidence in our edition of John Warr’s pamphlets, A Spark in the Ashes.As the introduction makes clear, we have transcribed Warr into modern orthography for ease of reading....
Letter

Libertyville

19 December 1991

I don’t understand why constructive criticism makes defenders of the Bill of Rights orthodoxy so aggressive. Neither Paul Hirst (Letters, 30 January) nor Anthony Lewis (Letters, 13 February) contests my account of the shortcomings in practice of instruments like the Canadian Charter of Rights and Freedoms. I have not argued from these, nor from the enhanced role they give to judges, that such...
Letter

Missing Person

5 May 1988

I don’t think I have previously seen a reviewer admit to a mistaken criticism, accept that the facts are the opposite of what he has alleged and then apply to them an enhanced version of his original slight (Letters, 2 June). George Steiner’s interesting failure to notice Orwell among the writers listed by Margot Heinemann as having fought in Spain makes his references to party discipline...

At Sunday mass in my North London parish there was recently imposed a ‘New People’s Mass’. It came suddenly and without warning. One week, we were all enjoying versions of the...

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In a narrow pass

Derek Hirst, 19 November 1992

Stephen Sedley and Lawrence Kaplan seek to map a new course for the post-socialist Left, and to turn attention away from that beguiling but now exploded theme, egalitarianism. The long fixation...

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