Vol. 5 No. 4 (April, 1995) pp. 128-129

JUDICIAL POLITICS SINCE 1920: A CHRONICLE by John A. G. Griffith. Oxford (U.K.) and Cambridge, MA: Blackwell, 1993. 207 pp.

Reviewed by Jerold Waltman, Department of Political Science, University of Southern Mississippi.

Limited by the doctrine of parliamentary sovereignty and constrained by a self-imposed legal positivism, the courts in England stood on the political sidelines for most of the twentieth century. Since the 1960s, however, the judiciary's political importance has grown steadily. By the 1980s, in fact, as this book notes, "the courts were never out of the news" (p. 153).

The Institute of Contemporary British History (which defines "contemporary" as post-1945) has sponsored a series of books under the general rubric Making Contemporary Britain. Some twenty are in print, with thirteen more already planned. According to the Institute, the works are designed to be "essential reading for students, as well as providing masterly overviews for the general reader." John Griffith was selected to write the present volume on the judiciary, which for an unexplained reason reaches back to 1920 rather than 1945. It was an apt choice. Griffith is a leading scholar of the British courts, known primarily for his pathbreaking THE POLITICS OF THE JUDICIARY.

The best volumes in this series can be of considerable use to scholars by providing the non-specialist a valuable introduction to a new field, or sometimes just a good read. Unfortunately, this book is rather disappointing on several fronts.

It is disappointing, first, in its structure. It is primarily a survey of individual cases. There is no thematic development, only the barest attempt to place the cases in context, and very little that ties the material in any meaningful way to wider political trends. In part, perhaps, this derives from the attempt to treat so lengthy a time period in only 191 pages. But even given that limitation, the discussion could readily have been organized around some kind of thematic presentation.

Moreover, even the examination of the cases is somewhat disappointing. In some, enough background is provided to allow the reader to make sense of what was at issue. In many, though, the discussion is truncated, or, worse, the author wanders off onto extraneous terrain. There is some attempt to comment on judicial and political philosophy at various points. However, the analysis is uneven, and not woven together in any coherent fashion. Readers who have not sampled a good bit of English judicial thinking before reading the book are likely, it seems to me, to emerge from this volume more confused than enlightened.

Another regrettable defect of the book is that Professor Griffith's ideological position is given too free a reign. Of course, the writing of history is often made better by being informed by a certain viewpoint, even a bias. Here though ideology overwhelms the narrative, with no compensating insight.

The most blatant instance arises in the author's handling of cases affecting trade unions. Industrial relations have indeed generated a number of important court cases

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through the years; and it is important to know why British trade unions have a historical skepticism of the courts. Nonetheless, Griffith's unbridled sympathy for the trade union movement skews the book in several ways.

First, he devotes far more space to these cases than a more evenhanded history would warrant. As important as these cases were, there are other areas of the law which deserve as much or more attention. Second, in his handling of some cases the trade union issues virtually blot out everything else. For example, in a 1984 case Mrs. Thatcher's government had banned a trade union at the General Communications Headquarters, Britain's code-breaking agency. In so doing, she had acted on the Crown's prerogative powers rather than any grant of statutory authority. When the case came before the courts, the central, and to some a momentous, constitutional issue was whether the exercise of the prerogative power was reviewable by the courts. Griffith's discussion, however, focuses heavily on the trade union aspects of the case. Third, the trade unions and trade union leaders are pictured in an unfailingly positive light. At times, the book approaches being an apologia.

Another instance of a somewhat slanted perspective is the invective directed at Lord Denning, for years a major figure on the Court of Appeal. True, Denning sometimes let his own partisan views slip into his speeches (opinions), and these were often unsympathetic to trade unions and various other left-wing groups. However, he was often out-voted on the Court of Appeal and frequently overturned by the House of Lords. Moreover, he was a more complex figure than the caricature sketched on these pages. He was one of the judges, for instance, who pressed the view that ordinary citizens should be protected by the courts from arbitrary administrative action, developing in the process many of the doctrines that moved the judiciary to a more activist stance.

Finally, there are some curious omissions from a book purporting to be a historical narrative. For example, in the late seventies there was a major and much-discussed change in judicial procedure which made it considerably easier for citizens to bring actions against government officials. This episode is neglected entirely. More importantly, there is no discussion of how Britain's entry into Europe has affected the judiciary, a matter of sustained attention for over a decade. Several cases which were appealed to the European Court of Human Rights are treated; but the more fundamental issue of how British courts interpret rules emanating from Brussels that conflict with Parliamentary statutes is ignored.

I do not want to leave the impression that the book is without merit. If one wants a brief summary of some of the major cases in British judicial history since 1920, it could be a useful starting point. Taken as a whole, however, the book has a taste of being thrown together hurriedly. American scholars seeking an introduction to British judicial politics would do well to look elsewhere -- to the fourth edition of Griffith's earlier book, for instance.

Reference:

Griffith, John A.G. 1991. THE POLITICS OF THE JUDICIARY. London: Fontana.