Knife, Stone, Paper

Working​ in 2010 on a knotty judgment about the power of the home secretary to include additional criteria in immigration rules that she had previously laid before Parliament as required by statute, something clicked in my memory. Four centuries earlier, in 1611, in a decision known as the Case of Proclamations, it had been ruled that ‘the King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm … The King hath no prerogative, but that which the law of the land allows him.’ It gave a key to the question, since immigration rules are made, without need of statutory authority, under the prerogative power to control entry into the realm, a power which is itself part of the common law and subject to its constraints. It was so when Elizabeth I’s autocratic successor, James I and VI, wanted to rule by proclamation; it was so in 2010 when Theresa May wanted to use the royal prerogative to bypass Parliament; it was still so in 2017 when it was proposed that the UK leave the EU by ministerial fiat rather than parliamentary authority, and again in 2019 when Elizabeth II was required by Boris Johnson to prorogue Parliament for no recognised reason.

In his recent Hamlyn lectures, now amplified and annotated, John Baker, the doyen of historians of English law, set out to compare the laws and legal systems of two reigns separated by four centuries and linked ostensibly by nothing more than the name of the incumbent monarch. But the comparison is more than a convenient artifice. Baker develops a case that in many respects ‘1952 was closer to 1558 than to 2020.’ His thesis is that, while change has been persistent, so has continuity, but that in recent decades an unprecedented and in many respects harmful gap has opened up between past and present.

What Baker does first is to describe the laws, lawyers and judges of late 16th-century England. He does this incomparably well, despite a contestable start. ‘There has been no sudden jurisprudential break,’ he says, ‘no Justinian or Napoleon, no Lenin or Mao, to disturb the legal continuity in England between the 16th century and the present.’ Well, the country did manage in the course of the 17th century to have a civil war, to behead the king and abolish the House of Lords; to bring in its first and only written constitution, the Instrument of Government; to oust another king and to create, with the aid of the Bill of Rights, the constitutional monarchy and Protestant succession we still have. Baker is able, even so, to insist on the continuity of the common law over these centuries. ‘Elizabethan cases can still be cited,’ he writes, ‘if they … have not been overruled or overtaken by later cases or statutes.’

It’s the ‘if’ that is critical. It may well be that a number of principles of modern contract law, for example, are first found in Elizabethan cases; but the question remains whether these are products of continuity and not simply of stasis. The case for continuity is strongest in relation to constitutional law. It doesn’t follow, as Neal Ascherson suggested in the LRB of 1 April, that because the UK has no written constitution ‘it has no law of state,’ with the result that ‘nobody knows who is ultimately in charge.’ It’s the crown that is in charge, functioning through three separate but interlocking institutions: Parliament, the courts and the executive. This paradigm long antedates the Tudors. It is depicted around 1300 in an illuminated manuscript showing Justinian on his imperial throne handing his legal code with his right hand to a kneeling lawyer and the sword of secular authority with his left hand to a kneeling knight. In modern as in Tudor Britain the crown is the titular source of all state authority: the queen sits in Parliament to make laws, her courts interpret and apply them, and executive government, headed by whoever for the present are her ministers, enforces them and administers the body politic, using a mass of statutory and prerogative powers. You could abolish the monarchy and substitute the state for the crown in all our laws and textbooks and (apart from the unappealing prospect of presidential elections) nothing much would change. For all that, there is more than one kind of monarch, and Baker is justified in regarding Elizabeth – especially by comparison with the frequently feckless Stuart dynasty which followed – as an intelligent monarch who understood the value of an independent, if opinionated, judiciary, and in particular of judges who kept in check ‘abuses of the royal prerogative by courtiers and profiteers, and … excesses of prerogative jurisdiction’.

Late Tudor litigation was probably as voluminous as it is today, but more expeditious, more localised and less expensive. Baker gives an example from the Canterbury court of piepowder (these were ad hoc courts attached to markets and fairs) in 1567: a complaint of breach of contract was lodged on a Saturday morning; the defendant was summoned at 2 p.m., appeared at 6 p.m. and was given till Monday to enter a defence. When he failed to do so, a jury sat at 1 p.m. to assess the damages (which were massive) and at 5 p.m. he was committed to jail for non-payment. Even Hamlet would have been silent in the face of such a timetable.

Court fees were moderate, and even lawyers’ fees were not extravagant. Solicitors – unqualified attorneys – were beginning to tout for trade, and attorneys (barristers) were starting to multiply, though whether this was a cause or an effect of the growth in litigation is debated. Chief Justice Coke thought, with good reason, that a principal cause was the market in confiscated monastic land. As for legal aid, Baker describes the marginal system of lawsuits in forma pauperis by which indigent suitors were given ‘process and counsel of charity’. This survived, along with the humiliating system of dock briefs, into the mid-20th century, and not solely at the margins. In 1965, as a pupil barrister, I was briefed in forma pauperis to appear before the Privy Council on a petition for leave to appeal against a conviction for murder. In spite of palpable errors in the trial judge’s summing-up the petition was refused, as practically all colonial criminal appeal petitions were. A few months later prisoners awaiting execution in Jamaica were reprieved to celebrate a royal visit, but whether by then Isaac Cornish had been hanged I never found out.

By the later 16th century women, though excluded from the professions, the universities and the church, could own property, and could trade, contract and sue just as men could, provided they were unwed or widowed and, if married, could sue jointly with their husbands or as executrices of estates. The much maligned Star Chamber, which in 1569 had pronounced the air of England too pure for a slave to breathe, treated the concerted harassment of immigrant workers as treasonable. By use of the royal prerogative, Jews – expelled en masse in 1290 – were able to enter the realm individually under letters of safe conduct, though ‘gypsies’ and Jesuits were barred by statute. While there were sporadic mass expulsions, for instance of Irish labourers and Spanish Moors, aliens lawfully within the realm were entitled to the full protection of the law, including a right to a jury half of whose members were to be foreigners. The one thing they could not do was own land, for if they could, Chief Justice Popham said presciently, ‘aliens could take leases of the greater part of the principal houses in the principal cities of England.’

‘It was already an important constitutional axiom,’ Baker says, ‘that the monarch could not alter the law.’ Where in other states the civil law was conceived of as the will of the prince, the common law demarcated the monarch’s prerogatives, reserving to her and her ministers such acts as declaring war, making treaties or appointing judges and ministers, but prohibiting her from creating new monopolies or tribunals, and from levying taxes, without statutory authority. The courts still patrol this boundary. Because it is on the Privy Council’s advice that the monarch conventionally exercises her prerogatives, it is that body – nominally the queen in council – which since the mid 20th century has more than once found its acts impugned in court.

‘The principal machinery for giving effect to the fundamental principles of constitutional monarchy,’ Baker writes, ‘was the writ of habeas corpus, which, in its newfound role, was an Elizabethan invention.’ He recounts how, starting in 1565, the courts established and exercised a jurisdiction to order the prerogative courts to release suspected recusants and heretics, and to prevent enforced self-incrimination. It is here that he locates the origin of the courts’ power to review governmental and quasi-judicial invasions of personal liberty, including imprisonment for non-payment of taxes and fines, and it was in this context that chapter 29 of Magna Carta rose to near scriptural status: ‘No freeman [for which now read person] shall be … exiled, or any other wise destroyed … but by lawful judgment of his peers, or by the law of the land.’ Baker points out the potential relevance of this still-extant provision to the Chagos islanders’ litigation, in which it formed part, albeit not a decisive part, of their case.

Insistence on the continuity of English law, however uneven, is neither mere antiquarianism nor mere conservatism, though it has aspects of both. John Laws, who died last year of Covid-19 (the obituaries were irrelevantly preoccupied with the fact that he was Dominic Cummings’s uncle), was for seven years standing counsel to the government of the day. If I record that he and I were repeatedly in court as opponents, that while we differed on practically everything in the universe (a traditionalist Anglican, he wouldn’t have the bishop of Durham, who had doubted the virgin birth, to dinner in the judges’ lodgings), we never exchanged a word in anger; that we coincided on the high court bench and then in the court of appeal, where we rarely disagreed, and that, together with John Baker, we were fellow benchers of the Inner Temple, the legal profession’s many critics will justifiably take all this as yet more evidence of an oligarchy whose forensic spats are a stilted costume drama behind which conservative values and self-interest rule. That certainly is the way Margaret Thatcher saw the bar – her own profession – and once in office she set about dismantling it, though with limited success. It’s similarly the background against which Laws, following his retirement, gave the Cambridge lectures which are the basis of his final book. In them, in place of his long-planned platonic project of delineating the good constitution, he set about describing and in places criticising the precarious and shifting balance of forces making up the present constitution of the UK.

The modern relationship of the three principal elements of the constitution – legislature, courts and executive – doesn’t resemble the cogs of a working machine, or the delegation of adjudicative and executive power by an omnipotent prince, so much as the ancient contest of knife, stone, paper, in which each element can defeat one of the others and be defeated by the third. Thus executive government, while in theory answerable politically to Parliament and legally to the judiciary, can in reality control both by using ministerial powers to introduce legislation (by which the courts will in principle be bound) and the government whips to ensure its passage. Equally, ministers can use Parliament’s arcane and obfuscating procedures to block legislation they dislike. Perhaps most important, cabinet, with no discernible historical warrant, exercises a practical monopoly of the Privy Council, enabling ministers to issue Orders in Council under the royal prerogative without either public notice or parliamentary debate. This is how the exiled Chagos islanders were finally deprived of their right of return. It follows that whichever party or coalition commands a majority in the elected chamber is for the time being in practical charge both of the legislature and of the executive – metaphorically, the stone and the paper. But the powers accorded to executive government by statute or the royal prerogative are not limitless. They are limited by one principal institution, the courts, whose power – that of the knife, which is ultimately defeasible by the stone – includes interpreting and enforcing Parliament’s legislation and applying the common law.

One aspect of the role of the courts, the disallowing of ministerial acts that go beyond the authority given by Parliament or the legal limits of the prerogative, arouses political ire on both sides. It is the reason the last Tory manifesto included a pledge to set up a commission on the uses and abuses of judicial review. There is as yet no commission, but the Ministry of Justice convened a panel chaired by Lord Faulks QC (by no means the worst possible choice), whose report was published in March. Separately, a panel headed by Sir Peter Gross, a former commercial lawyer and appeal judge, is reporting on the future of the Human Rights Act, despite the fact that the sustained political assaults on the act and the convention, which were designed to get the UK excluded from the EU, became an irrelevance with the 2016 referendum result. Despite the announcement in the recent Queen’s Speech of a Judicial Review Bill, it is still uncertain what is actually on the political agenda by way of reprisal for the double humiliation inflicted on the government by the Supreme Court at the hands of Gina Miller, apart from apparently serious suggestions that the Supreme Court should be given a less grand name or moved back to the Palace of Westminster where the law lords used to sit, presumably to remind them who’s really in charge.

As​ a judge, Laws handed down a number of important decisions, holding for example that a limited series of statutes – from Magna Carta and the Bill of Rights to the 1972 European Communities Act and the 1998 Human Rights Act – have a constitutional status or character which protects them from casual or adventitious alteration or repeal. Regarded initially as heretical, this view, giving a partial answer to the demand for a written constitution, is now orthodox. Of the other decisions Laws explains and defends, it is worth picking out the judgment in which he dealt with an application for permission to appeal against a finding that the dismissal of a Christian relationship counsellor for refusing to help same-sex couples did not constitute religious discrimination. The application included a request that a special court should sit to hear the appeal, consisting of judges with ‘a proven sensitivity and understanding of religious issues’ and excluding a number of judges whose decisions Lord Carey, the former archbishop of Canterbury, considered objectionable. Laws surprised those who thought he might be sympathetic to such a step:

A law for the protection of a position held purely on religious grounds … is … divisive, capricious and arbitrary … The precepts of any one religion, any belief system, cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens and our constitution would be on the way to a theocracy.

The passage gives some idea of Laws’s prose, both oral and written – almost baroque, verging on the ponderous, but considered and weighed out syllable by syllable. And his jurisprudence, for all his professed conservatism, is a long and salutary way from that of the judge who in 1797 directed the jury trying Tom Paine’s publisher, Thomas Williams, for blasphemy that the Christian religion was part of the law of England. In these and endless other ways, the UK’s constitution changes constantly, blown by winds of which the actors are barely aware. Who today would like to be heard saying that healthcare free at the point of use is not a constitutional right – at least for UK nationals?

Laws’s central concern is to describe and endorse what he views as the critical balance between democracy and legality, the former focused on social ends, the latter on individual freedoms. While the judges owe deference (a term he defends) to Parliament’s laws, he is prepared to contemplate the possibility of ‘a statute so outrageous that any conscientious judge would think it contrary to his or her judicial oath to uphold it’. Having politely described such a possibility as theoretical, he goes on to instance a clause in the 2003 Asylum Bill which would, if passed, have abolished all appeal and all judicial review in cases which had gone against the asylum seeker. In the event it was dropped, but Laws could have added that it had almost certainly been inserted in the bill as a lightning rod to divert attention from a comparably unconstitutional provision in another clause, which duly became law and which told tribunals that they must treat such things as the use of a false passport (sometimes the only means of fleeing persecution) as damaging a claimant’s credibility. It took a skilful judicial decision, laudably supported by the home secretary’s counsel, to modify the effect of this malicious provision. Although he doesn’t claim the credit for it, this was one of Laws’s judgments.

As Baker remarks, the state opening of Parliament by Elizabeth II in, say, 1959 differed very little from the scene in January 1559 when Elizabeth I opened her first Parliament in the presence of the judges, the bishops and a wholly hereditary peerage (it was augmented in the 1870s by the newly created law lords). In the succeeding years of the present reign the hereditaries have been cut back to 92, the law lords renamed and moved out to a proper court, and the Upper House packed with a mixture of life peers who can be legitimately said to mirror society: the competent and the incompetent, the experienced and the ignorant, the industrious and the idle. Only the 26 senior bishops of the state church remain, the rock of ages. Baker’s focus is accordingly on whether the constitutional glacier has now gone from melting to calving.

Even Elizabeth I’s Parliament faced legislative overload. ‘All our bills,’ William Fleetwood said in 1585, ‘are long bills, full of tautologia and cakaphonia, penned in barbarous English … I have been these thirty years of this parliament and never saw bills so illiterately drawn, and therefore we have such hacking and hewing of them.’ But where the first Elizabeth’s reign saw on average half a dozen new statutes a year reaching the point of royal assent, her successor has signed off an annual average more than ten times that number.

It was the 19th century which saw the shift from statutes as islands in the ocean of common law to a sea of legislation dotted with common law islands. Although it has regained some of its vitality since 1950, Baker contends that the common law is now a residual patchwork no longer able to fill voids in the statute book. I think he is wrong. More important, the politicians now in office think he is wrong, for they have set about clipping the wings of the judges, who have twice in recent years held ministers to have abused the royal prerogative of which they have temporary custody. The judges are no doubt grateful for the government’s offer, made with a straight face, to protect them from being used for political ends; but as any lawyer practising public law will confirm, the judges have shown themselves entirely capable of doing this for themselves.

The statute law which in Baker’s gloomy view now rules almost everything is wide-ranging. He cites the Localism Act 2011, the progeny of Eric (now Lord) Pickles, which ‘tacitly reversed the common law by giving every local authority “power to do anything that individuals generally may do”’ – a formula that embraces acting out of caprice, greed or spite. For good measure it allows ministers to amend or repeal any statute they think gets in the way of the newly empowered councils. Parliament appears to have passed this act in its sleep. Other acts, Baker remarks, ‘read more like departmental memoranda than legislation’. Others again are little more than public relations exercises: he instances the Autism Act 2009, which simply requires the minister to publish a strategy – any strategy – and then keep it under review. The 2003 Sexual Offences Act created some fifty new offences (some, Baker remarks, with prurient specificity) but failed to specify the requisite intent. Legislation is regularly passed that delegates legislative powers to ministers (an innovation, Baker points out, made not by Henry VIII but by the managerially minded Victorians), with the result that more than nine-tenths of the 2106 new crimes created in 2014 were introduced by departmental rules with little or no parliamentary scrutiny. Baker does eventually cheer up, noting that ‘statutes still have to be interpreted against the background of the common law,’ and that the common law ‘is likely to prove increasingly necessary as the statute-book continues to deteriorate’. The common law today, he concludes, is ‘the same organism facing similar challenges’. The same organism? Arguably yes. Similar challenges? On Baker’s own evidence, probably not.

Not everyone is going to applaud a chorus of self-congratulation issuing from the inns of court, but when the great cricketer Learie Constantine was in 1943 refused admission to the Imperial Hotel in Russell Square, there was still no law against racial discrimination. That had to await the race relations legislation of the 1960s and 1970s. Constantine won his case on the basis of a decision given in 1558, the year of Elizabeth I’s accession, that an innkeeper was obliged by the common law to accept any bona fide traveller for whom there was room. It can be debated whether we are better off today with a general freedom to lie than we were when spreading false news about the economy was a crime (as was held in 1566). It may be difficult to say more than that if statute law is here to stay, so is the commensurate need for a common law administered by independent courts. Knife can still sculpt stone.