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Justice changing gear to keep up

19 October 2002

12:00 AM

19 October 2002

12:00 AM

THE ENGLISH JUDGES Robert Stevens

Hart Publishing, pp.169, 22.50

Fifty-one years ago no one would have written this book, and, if someone had, no one would have read it. The constitution was not changing; and the judges’ role as the third arm of government would have been of interest, if at all, to lawyers only. It was minimal and marginal. Judges still proclaimed themselves as not creating law but discovering it. Their approach to statutory construction was literal, not purposive; indeed some tended to regard legislation with the disdain of a supercilious examiner for the work of an under-educated schoolboy. The concept of public law had not yet permeated the judicial mind: the courts even held that natural justice (or fairness) had no application to ordinary administrative action, itself seen as an exercise from review of which judges would abstain. Judges did not give press conferences, appear on television, or even write letters to the newspapers; in London they congregated in their Inns; on circuit they were immured in their lodgings.

But by the turn of the millennium both the context and the judges’ contribution had changed. The jury may be out on the legacy of the Blair administrations to Britain, but the codicil of constitutional reform may prove the most durable part of the inheritance. Devolution, quasi-reform of the upper chamber, the domestication of the European Convention on Human Rights are a significant testamentary trinity. The first and third have provided new material on which judges can work; but of their own motion they had already turned a stagnant pool into a fast-flowing river.

Many reasons can be advanced for this silent revolution. The procedures of the High Court were reformed to allow the litigant to choose appropriate remedies


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