33 Lord Denning’s Legacy: a Judicial Misfit?

LORD DENNING WAS Master of the Rolls for 20 years, from 1962 to 1982; he had been a judge since 1944 (38 years in total). Throughout those years he dominated the legal scene. Undeniably he was the master of court-craft, displaying all the attributes of a judge avoiding the aloofness of wig and gown, pres- entationally concerned to ensure that justice was seen to be done.

If Denning’s management of a reforming zeal was instantly attractive, both in and outwith the legal profession, his legacy in developing the law in a liberal, forward-looking way is decidedly questionable, and today is lost in the mist of a bygone age. Were the personal virtues of a legal luminary in any way justified in terms of a rational and logical jurisprudence for a modern democracy?

It is not as if, on his appointment as Master of the Rolls in 1962, Denning had not already demonstrated his waywardness, not to mention unorthodox judicial attitudes.

The point was referred to the Privy Council. The majority (by 6 to 1) held that the word ‘any’ was to be limited by the circumstances. It did not include a privilege conferred by the Bill of Rights... the Privy Council construed their terms of reference very narrowly. They expressly left open and undecided the views of the Committee of Privileges to the effect:

1. That the ‘defamatory letter of Mr Strauss to the Minister’ was a ‘pro­ceeding in Parliament’ within the Bill of Rights 1688; and

2. That the commencing of an action for libel was a breach of the privi­lege of Parliament.

... I expressed my reasoning in a memorandum and appendices which I add hereto.

The incident displayed, at worst, an unprofessional nastiness, typi­cal of a judicial maverick; it did not, however, impair the quality of the prodigious output over his memorable career, which continued for the next 20 years as head of the civil jurisdiction of the legal system, emerging from the common law’s ossified condition, which he was quick to observe and reform in his own image.

Denning pursued a uniquely personal vision of jurisprudence, in which the doctrine of precedent was readily side-stepped whenever he could not find the case law to his liking or where he disagreed with it whenever it did not accord with his own view of the justice of the case. It was unsurprising, but exhilarating stuff. Earlier in his judicial career, as a Lord of Appeal in Ordinary in the House of Lords, he was roundly criticised by the presiding Law Lord, Lord Simonds, a conservative, black-letter lawyer of distinction, for ‘naked usurpation of the legislature’. Outnumbered there as a mav­erick, Denning gladly stepped down in the judicial hierarchy (or rather took a step of equal judicial importance) to preside over the civil jurisdiction in the Court of Appeal. There, he proclaimed, he had only to contend with two colleagues instead of four in the Lords. In truth, he cannot be viewed, retrospectively, as an expo­nent of the law or as a creator of a modern legal system, although some decisions indicated a willingness to please the public. While, during his tenure of office, he appeared to be just that, it is signifi­cant that in the twenty-first century it is a rarity for any of Denning’s judgments to be cited by counsel or by today’s judiciary. Denning’s fame lies firmly in antiquity. He will be remembered - fondly, it must be noted - as the protector of the underprivileged. He liked nothing better than to be regarded as the protector of the little man (not often, the little woman) having to face the trials and tribula­tions of living under the thumb of authority. Denning’s judicial pro­nouncements were ever-present in the style of his judgments, too numerous for analysis in this essay. The style was deliberately idi­osyncratic, with constant references to homely exordia that brought an unconventional, poignant and nostalgic flavour to the official law reports of the twentieth century.

In summertime village cricket is a delight to everyone. Nearly every vil­lage has its own cricket field where the young men play and the old men watch. In the village of Lintz in the County of Durham they have their own ground, where they have played these last 70 years... yet now after those 70 years a judge of the High Court has ordered that they must not play any more. He has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket.²

Even if in his early days as Master of the Rolls his pronouncements were punctuated with such Arcadian allusions, and were appropri­ately appreciated as a judicially uncommon display of human activ­ities, even foibles, the style became overdone and stale. By the end (then an octogenarian) he became insouciant in his undoubted scholarship; his memory displayed a weakness in legal reasoning

and professionalism (he was the last serving judge to escape the retiring age of 75 imposed in the Pension Act 1959). He stayed too long, and only retired under a cloud of extracurial writings that dis­closed more than a hint of racism. His extracurricular activities should have alerted his supporters. In 1962, when he first became Master of the Rolls, he was asked by the Prime Minster to investi­gate, in private, single-handedly and with no cross-examination of witnesses, the case of and his report on the Profumo affair. If his unique method of public inquiry fell foul procedurally of the Royal Commission on Tribunals in 1966 before Lord Salmon (and thereaf­ter for 40 years under the 1921 Act for public inquiries), the ulti­mate verdict largely escaped public criticism at the time. Only years later - in 2012 - was the whole episode regarded as a ‘monumental whitewash’ of the Establishment of the day, in which two young ladies were dubbed sluts and an alleged brothel-keeper committed suicide during his trial for living off immoral earnings.

It was in fact only one aspect of a flawed personality that ulti­mately revealed his fundamentalism and old-fashioned prejudices and preconceptions. Here are some snippets selected from an impressive portfolio. But one case is fully cited with extracurial comments.

If one expected, or even hoped for, a new era of legal liberalism with the arrival of the new Master of the Rolls in 1962, one was not encouraged by his indiscreet utterances. Denning’s ‘justice’ was always personally malleable. I was the most junior counsel in 1962 in the appeal of Soblen,^[282] who had fled criminal justice from the USA as a convicted spy, but whose failed attempt to take advantage of Israeli status via his Jewishness led to his return via the UK to the USA. He lost his appeal in the courts against a deportation order, but committed suicide on his escorted journey to the airport. The comment on Lord Denning’s judgment by Dame Rosalyn Higgins (then teaching international law, and ending her fine career as the President of the International Court of Justice at The Hague) undis- guisedly queried the judicial approach. She said that the judgment had both blurred the traditional distinction between deportation and extradition, and gave the Home Office more protection than was legally necessary or politically desirable; the motivation for such tendency towards the Establishment was for the judiciary to allow administrators to act ‘in good faith’.⁵ This tendency was later exhibited in Hosenball⁶ where, in the Home Secretary refusing suc­cessfully to produce further and better particulars to a potential deportee, Lord Denning insouciantly declared that a British Home Secretary’s decision could always be framed in polite terms.

This fondness for the public administrator was amply demon­strated in his first decision in the field of social security.

No better example of individual justice over Executive action was displayed than in Lord Denning’s dissenting judgment in which he described my advocacy, on behalf of the Attorney-General as an intervenor in the case, as demonstrating the high constitutional sta­tus of the recognition of UDI in Southern Rhodesia, whereas it was clearly a case of ‘simple justice’.⁸ Lord Denning’s inclination to favour the ordinary individual against the might of the State was subject to inbuilt malleability even towards less publicly attractive citizens. Twice, there are examples of such judicial attitudes.

First, the Church of Scientology (a constant litigant before the Master of the Rolls): Lord Denning said that it did not qualify as a religious body for the purposes of relief from paying rates as a char­ity. The decision was ultimately overturned in 2013 by the UK Supreme Court in R (on the application of Hodkin and another) v Registrar-General of Births, Deaths and Marriages.⁹ Second, there

⁵ R Higgins, Themes and Theories Vol I (Oxford, OUP, 2009), a collection of essays on international law, at p 439.

⁶ [1977] 1 WLR 776, 783.

⁷ [1975] 1 WLR 624.

⁸ Re James [1977] Ch 41.

⁹ [2013] UKSC 77.

was the referral in 1981 in Payne’s case.^{[283] [284] Here Lord Denning declined to order that a decision of the Parole Board refusing a rec­ommendation for or against release should be fully reasoned; he declined the evidence of the Parole Board’s chairman11 which cham­pioned the prisoner’s case for a reasoned decision; in all decisions nowadays there can no longer be any doubt that prisoners may argue that there is a legal obligation on the Prison Service to supply reasons for administrative decisions, including the duty always to act fairly.[285] Reasons are always supplied for a parole decision.}

Most of the evidence is deliberate, although until he became an octogenarian he had amply displayed his undoubted scholarship; but as a scholar he became careless in his utterances, if not actively mischievous in his autobiographies, which ultimately led to his resignation. Denning’s biographer (or, in this case, perhaps hagiog- rapher) said that his ‘unaccustomed vanity obscured his sense of judgment’. Sometimes his judgment was opaque; here is one exam­ple. It was in 1979, in Lake vEssex County Council.^[286] My client was a part-time teacher in a primary school in the county of Essex. She had brought before the Industrial Tribunal a claim for unfair dis­missal by the local education authority. At that time, the jurisdic­tion of the tribunal could be invoked only if the teacher could demonstrate that she (or he) could establish a requirement under the contract of employment to carry out teaching duties on the school premises for more than a stated number of hours a week. The contract was silent about the length of time that a teacher had to be at the school. My client argued, in the Industrial Tribunal, that the law implied in a contract of service as a teacher that the hours spent away from the site of the school should nevertheless include the time spent (in the evenings at home) marking students’ scripts and preparing the lessons for the next day: in which case, it was possible for her to demonstrate that she far exceeded the basic num­ber of hours a week physically at the school. The short legal ques­tion was: is a part-time teacher bound by the precise terms of the contract, or was it permissible to include in the hours of work, the time spent on school business but which was performed not at school but at home? The Industrial Tribunal found in favour of the education authority, but the Employment Appeal Tribunal allowed her appeal because it thought that there was an implied term to the contract. Essex County Council appealed.

I should add that, to understand the litigation, it is necessary to note what lay behind the local education authority’s appeal against the adverse finding that a part-time teacher could properly invoke the jurisdiction of the tribunal. Two factors featured in the back­ground to the claim for unfair dismissal. First, my client was being financed in her legal claim by her trade union as part of its duty to support its members in such a claim. But the union was privately not too worried about the possibility of my client losing the appeal, the reasons being that at that time there were serious negotiations between the trade unions and the education authorities which were designed to achieve extra pay for those part-time teachers who had to prepare their work away from the school premises. If my client were to succeed in the argument, it would be a victory for the edu­cation authorities, who could resist the extramural claims because they would have been catered for within the existing contract. The requisite number of hours would have had to be performed exclu­sively at the school premises and not at home. Now for the hearing before Lord Denning and Lords Justices Lawton and Geoffrey Lane.

My opponent was Derry Irvine, later to become Lord Chancellor in the Labour administration from 1997 to 2003. He skilfully addressed the Court, deploying the case law to demonstrate that it was not permissible for the Court to imply any term into the con­tract that could allow for time spent working at home to be brought into the time count to exceed the limited number of hours at the tribunal’s jurisdiction. By the time I was called upon to reply, the Court was attracted to my opponent’s argument. The case was adjourned overnight and shortly before the luncheon adjournment on a Friday morning, Lord Denning delivered judgment in favour of Essex County Council, without too much reasoning. The two Lords Justices gave compelling reasons for allowing the appeal. As you will appreciate, my instructing solicitors and the union were not disappointed; in fact they were pleased to continue pursuing their argument for extra pay for homework!

It was Lord Denning’s practice to lunch on a Friday at Middle Temple Hall, as a member aliunde, since his normal Inn of Court was Lincoln’s Inn. It so happened that our paths at lunch crossed. In a thoroughly genial mode, he said he was sorry to have to find against me, but he was suitably (if over-generously) complimentary of my forensic efforts. But he emphasised that justice had to be done, according to the law. And he was almost certainly right, as the law stood then. When I replied that I was grateful to him, he looked puzzled. I had observed that my side were delighted, because it meant that the Court of Appeal had in effect put thousands of pounds into the pockets of part-time teachers, since the unions had preserved their powerful bargaining position. I should also add that, from past experience, Lord Denning had been hostile to trade unions; he did not like the teaching profession and women were not accorded priority in his way of thinking. When I responded by telling Lord Denning that he had not fully (if at all) appreciated the reality of the posture of the litigating parties, he instantly said - and I can almost repeat verbatim, 30 years later, his words - ‘If I had known that, I would have decided the case differently.’ And I was (and still am) convinced that he meant it. Justice, for Lord Denning, would have been in favour of my client, because the result would have denied the trade union on behalf of part-time teachers the strong claim to payment, over and above that provided in their con­tracts. The story is improved by the oral recounting of the event - together with an imitation of Lord Denning’s ‘Hampshire burr’.

Do I need to say more than this? Lord Denning had very strong views on the merits of any claim, and the courts, he considered, should come down on their side irrespective of the legal rules. It was a classic instance of one judge’s pervading sense of justice that had to prevail. Was he in fact a judicial misfit, a man for his times when the law needed to be wrested out of its cocoon, protecting a Victorian vision of the law? Or should we revere a figure of such judicial prominence and effect on British society - a judicial misfit?