Without Prejudice

by Carl Gardner on March 2, 2012

Charon QC chairs Without Prejudice as usual as Gary Slapper, Times Law columnist and Director of NYU in London joins David Allen Green and me to discuss:

  • civil disobedience and the rule of law
  • the “Sedley v Sumption debate” about whether judges are becoming too political
  • the Leveson inquiry, and whether the News of the World tried to undermine a murder investigation, and
  • whether the rank of Queen’s Counsel should be abolished.

Here’s Jonathan Sumption’s FA Mann lecture and Sir Stephen Sedley’s LRB article in response, both of which we discuss. I’m the only one to speak up for Sumption who, in spite of some effective small thrusts Sedley makes against him, was I think making a real and important point.

Listen to the podcast here – or or subscribe through iTunes.


{ 4 comments… read them below or add one }

1 Tim March 3, 2012 at 00:13

I’m fed up with podcasts – they’re inaccessible to Deaf people without a transcript. So not really open justice.

But FWIW, I think Sunption is a government plant.

2 Ben March 3, 2012 at 00:15


The argument is that since the document is old, it may inevitably become unsuitable, so it must be interpreted as a living document. It this doesn’t work for the US constitution. There is a given procedure for changing the constitution and it has been used many times. To say that since the text may become outdated it must be reinterpreted for each generation is to ignore that. If it is truly outdated and no longer suitable let it be changed using the procedure that is set out. For Judges to decide “no, let us reinterpret it for modern times” when the same result could not be got by an amendment is for judges to usurp the people. (This is distinct from the common law which is made and unmade by judges, and sometimes, as mentioned, juries).

The point was made that the constitution dates from a time of slavery and male franchise. Surely the constitution cannot still be interpreted in that way? And of course that is correct. But the constitution was amended, using the constitutional procedures, in order to make those changes – they weren’t made by judges’ generational reinterpretations.

Since that’s the case, it must be right that the constitution means what it says. So Scalia is right – the law means what it means. If you don’t what the constitution says, if it is not progressive enough, promulgate an amendment.

Parliament v. Judiciary

For the primacy of Parliament or even EU law, we need only to observe that Parliamentary Sovereignty is an invention of common law and can be uninvented the same way. Should parliament pass an act requiring the supreme court to be boiled in oil, no doubt some limit would be found to parliamentary power. (Perhaps the PM was acting ultra viraes in advising HM to give assent to said Act! I am sure an “evil advisor” could be found to preserve the fiction if it were felt necessary.) If the boundaries to the authority of Parliament have not been found it is only because parliament has not yet acted unreasonably enough.

3 James Medhurst March 5, 2012 at 01:28

I think that employment lawyers have a different perspective of this debate becuase employment statutes are usually to the left of public opinion. Therefore, when given a “purposive interpretation” or “butchered”, depending on your point of view, the result is liked by the right-wingers who usually complain about non-literalism. What this shows is that the debate is just a concealed one about left and right so, while some judges are more “black letter” than others, this sort of theorising is very rarely the best way to identify them.

Lady Hale, for example, is portrayed as being an interventionist judge but, when it comes to discrimination law, she is usually less tempted to stray from the statutory wording than her colleagues.
By contrast, in the United States, the Americans with Disabilities Act had to be reissued by Congress because judicial lawmaking had strayed so far from legislative intention. A similar thing happened here after Malcolm, but was fixed more cleanly in the Equality Act.

I am sceptical of Sumption´s points because I suspect that, when push comes to shove, and he is presented with a point in which the literal reading requires a left-wing solution, all of his interpretive principles will go out of the window. We shall have to wait and see.

4 Carl Gardner March 8, 2012 at 17:57

Good point, James. I do think though that when these issues are discussed many non-lawyers assume that the left-right conflict is the only ideological contest going on, whereas there is also (it seems to me) a separate contest going on between those who favour more judicial activism than less, or more “liberal” (a misnomer I think) interpretations of legislation. I agree, though, that these debates cross over each other and are never pure or simple.

Ben, you raise an interesting constitutional point about Royal assent. I don’t think the PM does give the Queen advice about Royal assent at all. The relevant constitutional convention isn’t that she acts on ministerial advice here, but that she grants Royal assent to Bills passed by the Lords and Commons.

If that weren’t the case, then conceivably she would “veto” a Bill that happened to get through Parliament contrary to the PM’s wishes, something that might seem a remote chance as things are but which might well happen on day if we even got PR.

So I think the Queen acts entirely independently as one of the parts of Parliament, and grants her assent purely in accordance with convention. The PM has I think no role at that stage whatever.

Oh, and I always say this when Royal assent comes up: many people assume Royal assent could never be refused, but I think they’re wrong. It could lawfully be refused, and I think it’s important that politicians are aware of that.

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