It is hardly surprising if the attitude of the left — which I shall leave undefined, though I shall concentrate on the Labour Party — towards judicial power is not entirely friendly. Labour has always been a working-class party rooted in trade unionism, and, traditionally, the working class experienced the law largely through the criminal courts. The courts that impinged most frequently on offenders were local courts, for centuries operated by justices of the peace (‘JPs’), a voluntary unpaid office that combined executive and judicial functions and was hence usually confined to the ‘squirearchy’. JPs were involved in all criminal cases and tried misdemeanors, infractions of local ordinances, and bylaws. Class, politics, and law were closely linked; JPs often had a political background, as indeed did judges. In his masterly account of the eighteenth-century Black Act, designed against poachers, but used widely and repressively in public order cases, E.P. Thompson cites Lord Hardwicke, who had helped as Attorney General to draft and secure the passage of the Act. Hardwicke canvassed for more severe penalties against rioters and used his position as Lord Chief Justice to hear cases that substantially widened its aspect. Radical writers and activists came up against the judiciary in other circumstances. Sedition — the offence of exciting disaffection against the Crown or governmental institutions of the country — was a common law offence, famously used in 1792 against Tom Paine, author of the Rights of Man. The Tolpuddle Martyrs were convicted and transported for swearing an illegal oath to combine and raise wages for agricultural workers.
In the civil courts, too, the relationship of the law to trade unions was one of hostility. Judges in the late nineteenth century developed the tort of conspiracy to provide an action for employers against collective action by unions, for decades resisting and whittling down parliament’s attempts to protect the unions. In general, judges supported capital, developing the common law to deprive workers of redress for industrial injury. An ‘unholy trinity’ of defences to actions for employers’ liability emerged, based on the notion that workers were free to choose their employment: the defence of voluntary assumption of risk and partial defence of contributory negligence and the doctrine of common employment, which meant that employers were not liable for accidents caused by fellow workers. Not until the late 1930s did the courts change tack decisively by developing an employer’s duty of care towards the workforce. In the meantime, it was left to parliament to mitigate the situation created by the judges with successive Workmen’s Compensation Acts (1897, 1906). The performance of county court judges in workmen’s compensation cases was poor, leading to a flood of conflicting decisions emanating from pro- and anti-employer judges — a discouraging experience allegedly partly responsible for the radical Liberal government’s choice of tribunals around 1910 to adjudicate disputes under the first welfare legislation. The preference for tribunals as an informal, inexpensive substitute for the formal ‘atmosphere of uncomfortable dignity’ of courts became a marked feature of all modern welfare legislation. Litigation in the civil courts was, in any event, beyond the reach of most working people. The procedures were complex and tended to require legal assistance. There was some charitable provision for legal aid, but no general legal aid scheme before the Legal Aid and Advice Act 1949; this was partial, extended to the county courts in 1960.
Between the World Wars
Against this background, suspicion of judges, magistrates, and the common law on the part of radical reformers was not unwarranted. In the inter-war years, the viewpoint found expression in the work of an outstanding group of left-wing academics intent on law reform, working at the London School of Economics (LSE). The work was inter-disciplinary (indeed, the LSE had no distinct law department before the late 1920s), and legal studies were an integral part of the teaching from early days.
The two academics with the strongest interest in law reform were in fact non-lawyers: Harold Laski, a political scientist, and William Robson, the first professor of public administration at the LSE. Laski campaigned actively for a Crown Proceedings Act to end crown immunity from liability in contract and tort, a reform carried through by Sir Hartley Shawcross in the post-war Labour government in 1947. Laski also pressed on Lord Sankey, the Labour Lord Chancellor from 1931-35, the need to copy the American practice of providing legal representation to the poor through salaried law centres. Robson’s main field was administrative justice: he never ceased to push for a system of administrative tribunals “in the main independent of the courts of law”; also amongst his objectives was the development of user-friendly machinery for the resolution of ‘small claims’. Robson castigated the judiciary for doing “absolutely nothing to modernize, to cheapen or to bring into accord with modern needs a fantastic procedure which has been obsolete for at least a century”. He claimed too that, although the lawyers still regarded themselves as champions of the popular cause, that honour lay with “the great departments of state”. These were not only “essential to the well being of the great mass of the people, but also the most significant expressions of democracy in our time”. Robson’s long-term interest in administrative justice led, in time, pioneering studies of welfare administration and a movement for better administration of tribunals to provide justice for the poor.
Central to the inter-war campaign were two journals: the Political Quarterly (PQ) and Modern Law Review (MLR). The former was founded in 1930 by Leonard Woolf to discuss social and political questions from a progressive point of view. It carried an important series of ‘Essays in Law Reform’, opened in 1933 by D.N. Pritt, a prominent radical barrister, with an article on how to set about reform. Pritt complained that a system based on judge-made precedent created uncertainty, delay, and expense, and that the complexity of the procedure was fit only for “wealthy litigants or powerful corporations”. As reform would be difficult “due to the conservative nature of lawyers”, Pritt argued for a Poor Persons Department to help the poor obtain justice. This introduced another regular theme for the reformers: the case for a Ministry of Justice, ultimately instituted by Tony Blair in 2007.
Theo (later Lord) Chorley, in his contribution focused on the political nature of the judiciary, and argued for a new system of judicial appointment to redress the problem of judicial appointments going to “lawyers who have been actively engaged in politics”; he added for good measure that the “system of amateur Justices of the Peace should be abolished”. This theme was taken up by Alexander Carr-Saunders in his article on the civil courts, who noted a change from JPs who were “persons of a certain social standing”, independent of the police and with a sense of duty and “judicial outlook” to a magistracy that was ‘normally a reward for political services’ and where judicial outlook had been lost. Ivor Jennings, in a parallel article on county courts, described these as providing “cheap justice for poor men”, a “class distinction” based on the “inaccessibility of the High Court to the proletariat”. The outcome was a judiciary out of touch with its clientele. Both Chorley and Carr-Saunders drew heavily in their articles on the comparative work of a third left-wing intellectual, barrister and Labour councillor, R.C.K. Ensor. Jennings believed that the system should be decentralised, assize courts abolished, and county courts distributed throughout the country; for Carr-Saunders, the solution lay in a three-man bench composed of one stipendiary and two lay magistrates. Note the ‘bottom up’ emphasis on courts that dispensed justice for the working classes.
The MLR, edited from 1937 by Chorley, provided a platform for radical LSE reformers. In the first edition, for example, we find Ivor Jennings fulminating against the damage inflicted by the “excessive influence of common law methods of thought in the interpretation of modern legislation”. The MLR was able to carry on in slimmed-down editions throughout the war with articles that — like the more famous Beveridge Report on ‘Social Insurance and Allied Services’ — reflected preparations for Labour government after the war with which several members of the department were intimately involved. Thus, a lively discussion in the journal of workmen’s compensation law and practice formed the background for the introduction by the Attlee government of a state insurance scheme in 1946, and a series of articles concerning legal aid contributed to the introduction of funded legal aid in 1949.
The post-war period
It is convenient to date the end of the inter-war period of law reform with the fall, in 1951, of the Labour government, which had carried so many of their ideas into law. But a new period opened in the 1960s in which LSE lawyers also played a significant part. The career of Michel Zander, entirely devoted to law reform, opened with the publication of the restrictive practices of lawyers in 1967. Working closely with colleagues from other departments (Brian Abel-Smith, Robert Stevens, and Rosalind Brooke), Zander helped to found a tradition of solid scholarly research into the organisation of the profession, legal services, unmet legal need, and administrative justice, using his position as legal correspondent of the Guardian to publicise their views. Zander’s Hamlyn lectures in 1999 reprise his long-term work on legal aid and access to justice. While highly critical of the Woolf reforms of civil justice, Zander approved of Tony Blair’s Human Rights Act 1998, for which he had fought long and hard.
It is said that the book that provided the blueprint for the concrete reforms of Harold Wilson’s Labour governments of 1964-70 was Law Reform Now, sponsored by the Society of Labour Lawyers and edited by Gerald Gardiner QC (then soon to be Harold Wilson’s Lord Chancellor) with Andrew Martin. Gardiner was responsible for the Law Commission, set up in 1965 to keep law reform consistently on the agenda. Wilson’s government was also impelled by Richard Crossman to establish a parliamentary ombudsman to handle complaints against the administration unlikely to reach the courts. The Labour governments of Tony Blair (1997-2007) and Gordon Brown (2007-10) were equally reformist: think of the Human Rights Act 1998; the Constitutional Reform Act 2005, which set up the Supreme Court; and the thorough remodelling of the administrative tribunal system in 2007. These changes had figured on the agenda of left-wing reformers for many years.
One cannot end this short account of the left’s relationship with the judges, however, without a mention of the controversial work of the disputatious J.A.G. Griffith, life-long critic of the judiciary and leading advocate of judicial self-discipline. In his ‘little book’, The Politics of the Judiciary, Griffith presented the judiciary as a class that was ‘broadly homogenous in character’ and saw itself as protector and conservator of ‘what has been’ — though he presented a set of short case studies that certainly suggested a bias towards ‘reactionary conservatism’. The book created a furore. Lord Hailsham, then soon to become a Conservative Lord Chancellor, attacked it in a broadcast, and Kenneth Minogue, colleague and right-wing reviewer, said that it formed part of a tradition that “rip[ped] the mask off the sacred name of justice and reveal[ed] the political passions pulsing underneath”. Minogue aligned Griffith with the Baader-Meinhof gang for ‘believing that every criminal trial is categorically unjust.’ An unrepentant Griffith went on to attack the proposals for radical constitutional change advanced by “a number of rather improbable people” — namely Lords Hailsham and Scarman. In a daring case for the existing “political constitution”, Griffith (in common with many left-wing writers) rejected a human rights culture based on “the imprecisions of Bills of Rights or the illiberal instincts of judges”. Ironically, in a modern context, this standpoint aligns the unremittingly Labour Griffith with the right wing of the contemporary Conservative Party, a paradox that seems the right place to sign off.
Carol Harlow is Emeritus Professor of Law at the London School of Economics.