Judicial Recklessness

On the inexorable rise of anti-law

DAVID MCGROGAN

The scientific study of [law]… will produce lawyers whose advice and assistance will be a reliable guide to the legislature in framing statutes in organic connexion with the past and in harmony with the social development of the national life.

Final Report of the Royal Commission On University Education in London (1913)

Readers are probably familiar with the idea that society is becoming in some sense hyper-judicialised: we can’t seem to escape from meddlesome judges. Whether it is in the field of the environment, immigration, employment, town planning, even high stakes international relations, and whether the decision-maker is a small business owner or the Prime Minister, we seem hemmed in at every turn by glib people in wigs making pronouncements about ‘constitutionality’, ‘human rights’, ‘equality’, and ‘fundamental principles of the common law’.

You would be forgiven for thinking that this shows that the legal system is in rude health. But of course the truth is the opposite: as a general rule, the more one sees of judges, the less well the law is working. When law is at its best, it barely ever needs to be referred to at all, because it seamlessly and lightly regulates our conduct. We know what it is and we do not breach it. But more importantly, it is integrated into and springs from our customary ways of doing things and our sense of morality, so abiding by its rules is almost entirely instinctive and natural. On the occasion when it does come up and we do not know how it will apply in a particular circumstance, a half-decent lawyer will be able to tell us what to do very straightforwardly and judges rarely need to get involved.

An excess of litigation is a sign that something is going badly wrong, then, and this is especially true at the intersection of law and politics, which is where the field of public law lies. When judges are doing a lot of vetting of political decision-making, it is either an indication that political decision-makers are out of control, or that judges themselves are over-reaching, or both. In any of these cases, something truly undesirable has happened. But while we have quite a developed understanding of reckless politicians and how they can mess things up (thanks to our experience in the 20th century) we do not have anything like as sophisticated an awareness of the opposite problem: reckless judges.

Britain in 2026 lies towards the end of a long project of judicial recklessness that began really in the early part of the 20th century, accelerated in the 1960s and again in the 1980s (when hostility towards Thatcher’s governments became a kind of rallying cry for the British intelligentsia) and then was transformed into something like a national philosophy under Tony Blair. The story of how this happened is rather too long to go into here, of course, but the essence of it is important for everybody to grasp: it consisted ultimately of an entrenchment of what I will call anti-law at the expense of real law. And this is the message that I want you to take away from this post above all else: judicial recklessness foregrounds the judge as a deliberative decision-maker. But that is not an exercise in the application of law. It is rather the opposite.

Let me illustrate this by reference to one of the most important public law cases of the Blair era, R (Daly) v Secretary of State for the Home Department [2001] UKHL 26. I say that it was ‘of the Blair era’ with a heavy caveat attached – the case actually concerned government policy that was made effective in 1995, when the Conservatives were in power, and therefore could also be described as coming at the end of a period during which the courts had already been endeavouring to hem in the Tories at any opportunity. And for this reason it is also significant in demonstrating that, while the Human Rights Act 1998 (HRA) certainly had a big influence on UK public law, a lot of our problems stem more from judicial attitudes that long predate it: Daly did not apply the HRA at all, since the claim originated before its enactment.

The facts of the case are not complicated. In 1995 the then-Home Secretary (Michael Howard MP) created a new policy for the searching of prison cells, as empowered to do by s. 47 (1) of the Prison Act 1952. The material parts of this statute read:

The Secretary of State may make rules for the regulation and management of prisons…and for the classification, treatment, employment, discipline and control of persons required to be detained therein.

This new policy contained such a rule, which stipulated that during a cell search, staff ‘must examine legal correspondence thoroughly in the absence of the prisoner [emphasis added]’. The rules stipulated that it was only in special circumstances that such correspondence may be read, and it was only generally supposed to be examined to the extent necessary to make sure it did not conceal anything (such as drugs, money, escape equipment, etc.). But that examination had to be carried out without the prisoner being present.

The reason for this rule having been made was that in 1994 six ‘category A’ prisoners, meaning those in the most dangerous class of all, had escaped from a high security prison, HMP Whitemoor. One was an armed robber; the others were IRA members; and they had escaped by smuggling various items into the prison including a bolt cutter, rope ladder, and two guns. And this, it subsequently emerged, had happened partly as a result of the cells of these men having not been searched adequately or regularly, because prison staff had been scared to do so in the presence of the men in question or had become too ‘familiar’ with them.

An inquiry into the Whitemoor escape by Sir John Woodcock, a former Chief Inspector of Constabulary, had recommended as a result of all this that prisoners be excluded from their cells during searches, so they could not intimidate those who were carrying out the search. And so it was that the new policy made this a part of a fresh set of generally applicable rules across the prison population.

(It is probably also worth mentioning that prison escapes were big news at the time and a politically sensitive subject. British readers may remember Michael Howard, who issued the rules in question, making a famous appearance on Newsnight to respond to questioning about whether he had ‘threatened to overrule’ Derek Lewis, the then-Director General of the Prison Service, if he did not dismiss the Governor of another prison where a similar breakout had happened. Political careers, in other words, rested on the outcomes of prison breaks and it was thought necessary to have a clamp-down.)

Anyway, a man called George Anthony Daly was a long-term prisoner at this time (details of the reason why he is in prison are hard to find, but a now-closed record at the National Archive suggests he was convicted alongside two other men for ‘murder, rape, robbery and aiding, abetting, counselling or procuring the commission of an indictable offence’). He was in the habit of storing legal correspondence with his solicitor in his cell. And he (one always has to be careful here; ‘he’ in this case really means whoever was funding the litigation – ordinary prisoners do not find themselves being represented by QCs at the House of Lords) objected to the new policy. The new rules, insofar as they stipulated that searches of legal correspondence must take place in the absence of the prisoner, were unlawful.

The reason for this concerns the lofty-sounding ‘principle of legality’. This is the notion, described in the case of ex parte Pierson (a case I wrote about a week or so ago) as follows, that:

A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee [sic] of the power which adversely affect the legal rights of the citizen or the basic principles on which the law of the UK is based, unless the statute conferring the power makes it clear that such was the intention of Parliament.

Put more bluntly, a power conveyed in general terms does not allow the person exercising it to do whatever he or she likes as long as it is tangentially related to those terms; he or she still has to be limited by the intention of Parliament when passing the legislation in question. And Parliament is presumed not to have intended to grant to anyone the power to override legal rights or basic principles unless it has said so explicitly – it cannot do so by accident.

This is a difficult principle to grasp in the abstract but easy in practice, and at root it is a good, sensible idea. We can see this by referring to the funny old WWI case of Chester v Bateson [1920] 1 KB 829. Here, s. 1 of the Defence of the Realm Act 1914 (one of a series of ‘Defence of the Realm Acts’ or DORAs enacted to give the government emergency powers during the war) had granted to Ministers the power, among other things, to make regulations ‘otherwise to prevent assistance being given to the enemy or the successful prosecution of the war being endangered.’ And on that basis the Minister of Munitions had issued regulations which prevented any ‘munition worker’ being evicted from a ‘dwelling-house’ without permission of the Minister himself. This was presumably done to give special protection to munitions workers, who at that time were of course in one of the most important and highly-skilled trades in the country. And the regulations were in this sense tendentiously connected to ‘successful prosecution of the war’, at least when enacted.

The problem was that the regulation remained in force after the war, and in 1919 the owner of a house which had been tenanted by a munitions worker somewhere in Lancashire asked his tenant to leave on the grounds that the tenancy agreement had expired. The tenant refused and in effect was therefore illegally squatting. The owner attempted to have him evicted by court order, but was not heard because he had not received permission from the Minister of Munitions.

He sought to have the regulations in question declared unlawful and succeeded. The court held that while the Defence of the Realm Act 1914 may have given the Minister the power to make regulations to ‘prevent assistance being given to the enemy or the successful prosecution of the war being endangered’, that did not mean he could make whatever rule he liked and dress it up as having been made for those purposes. Parliament could not have intended for the effect of the legislation to mean that a landlord could be prohibited from ever evicting a tenant simply because the latter was a munitions worker, and not to be able to sue in court to recover his property. So the regulations were held ultra vires – they were not in the Minister’s power to make – and unlawful.

That seems like a sensible outcome: at the Chester v Bateson level, there should be constraints on the powers which Parliament grants to the executive in general terms. And this is not a limitation on Parliamentary sovereignty; the underlying point is that Parliament can make whatever law it likes, but its intentions have to be clear. If Parliament really wants it to the case that landlords should have no recourse to courts to enforce tenancy agreements against tenants who are munitions workers, it has to say so explicitly, and if it does so, that will be law. But it is not in the power of a minister to make that leap for himself without clear Parliamentary authority. And ‘prevent[ing] assistance being given to the enemy or the successful prosecution of the war being endangered’ is not clear Parliamentary authority for that leap.

You will immediately see the problem, though, which is that while it is all well and good to constrain the executive’s creative use of powers granted by Parliament, it is easy for judges to abuse their power to do so by finding executive decisions to be unlawful simply because they don’t like them. And there is little that can really be done about this in our current constitutional arrangements – judges just have to be trusted to apply the ‘principle of legality’ prudently and judiciously.

Returning to Daly, then, the argument put forward by the claimant was that legal professional privilege is an important basic right, and that infringing it is tantamount to a restriction of the common law right of access to court. It is not that Parliament could not abrogate that right if it wished to by explicitly providing that the Home Secretary could make rules to that effect. But Parliament had not done that. All Parliament had done in s. 47 (1) of the Prison Act 1952 was to give the Home Secretary powers to ‘make rules for the regulation and management of prisons’. This did not explicitly give him license to do so in such a way as to abrogate the common law right of access to court. So he could not lawfully do so and his power, insofar as it made the rule in question, had been exercised ultra vires.

On the face of it, Daly resembles Chester v Bateson. But there are big differences, and you may have spotted the three most important ones. The first is that Chester v Bateson concerned an issue that was really no longer a matter of public importance – the dispute originated in 1919, when there was no earthly reason for the regulations in question to continue in existence even if they had had a sound rationale during the war – while Daly concerned a live political issue which would impact public safety. Anybody can see that there is a distinction to be drawn between an absurd requirement for ordinary people to seek special permission from a government minister before they can enforce their property rights, and a Home Secretary trying earnestly to implement the recommendations of a public inquiry concerning the prevention of escapes from high security prisons.

The second is that Chester v Bateson concerned enforcement of concrete private law rights whereas Daly stood on much more nebulous footing. The point about Chester v Bateson was that the landlord had a perfectly good claim founded on an existing legal obligation. There was absolutely no reason why he should not have been able to evict his tenant except for the existence of the Defence of the Realm regulations. Mr Daly, on the other hand, was not seeking to enforce an existing private law instrument that was otherwise perfectly valid. He was seeking only to enforce a rather ill-defined ‘right of access to court’ with a threadbare connection to some other recent cases.

And the third is that Chester v Bateson is just far more serious. While we can all understand why a prisoner might not like to have his legal correspondence examined, and while we can all understand that this would be suboptimal in terms of our regard for legal professional privilege, a prisoner may still communicate with his solicitor and may still access court even if his correspondence is being inspected for contraband in his absence. But in Chester v Bateson the regulations in question literally made it impossible for the landlord to obtain a court order at all. It was a complete bar on him accessing court without permission from the government. That is a very different proposition to merely examining somebody’s legal correspondence in their absence.

Lord Bingham’s reasoning on this point in his judgment in Daly (drawing on other recent cases) was that in some vague sense prisoners would be unwilling to communicate with their solicitors with ‘unreserved candour’ if they thought that their correspondence might be read. But one has to ask whether the right of access to court really extends to including a right for a prisoner to communicate with his solicitor with ‘unreserved candour’. No doubt it is better for him to do so. But does that mean he ought to have a right to? And would that right be breached if a prisoner simply ‘felt unwilling’ to write with the ‘unreserved candour’ in question?

In other words, what we are comparing here is a distinction between a regulation which entirely abrogated the right of access to court and thereby prevented enforcement of perfectly good private law rights, and a regulation which at most mildly hindered the right of access to court and certainly did not interfere with the claimant’s capacity to take part in legal proceedings. And what we are in other words comparing is a fairly clear-cut and extreme case in which a regulation could be said to have pretty clearly been made ultra vires, with a situation where the matter is, at best, arguable either way.

And because in Daly the matter was really arguable either way, we find ourselves reading, in the judgment, an oddly deliberative document – one in which the law is hardly discussed at all. Instead, what is presented is only slightly more elevated than a dinner-party discussion about government policy. Out comes the Director General of HM Prisons, Mr Narey, to justify the policy in question:

These searches must be carried out in the absence of the prisoner in order to discourage prisoners from using intimidatory or conditioning tactics to prevent officers carrying out a full search…By ‘conditioning tactics’ I mean action by which prisoners seek to influence the future behaviour of prison officers. For example, a prisoner might create a scene whenever a particular item was searched, intending to cause prison officers not to search it in future on the ground that searching it was more trouble than it was worth. The policy also prevents prisoners from becoming familiar with searching techniques generally and those of individual officers.

He then adds that ‘It is…my own view that the [it is] unavoidable that we maintain the current position in an effort to deter concealments of this nature and the resultant threat to security and good order and discipline.’

But then along comes Lord Bingham, the universe brain, who apparently never once stopped in his entire life to ask himself ‘Que sais je?’, to offer his own view. It ‘must be recognised’, he airily conceded in his judgment, that ‘the prison population includes a core of dangerous, disruptive and manipulative prisoners, hostile to authority and ready to exploit for their own advantage any concession granted to them.’ Yet, as he went on: ‘

I cannot…accept that the reasons put forward justify the policy in its present blanket form. Any prisoner who attempts to intimidate or disrupt a search of his cell…may properly be excluded even while his privileged correspondence is examined so as to ensure the efficacy of the search, but no justification is shown for routinely excluding all prisoners, whether intimidatory or disruptive or not, while that part of the search is conducted…The infringement of prisoners’ rights to maintain the confidentiality of their privileged legal correspondence is greater than is shown to be necessary to serve the legitimate public objectives already identified.

He then went on to cite various techniques which the Prisons Ombudsman had described being used in other prisons and which were less intrusive, and suggested that on the basis of their existence a blanket exclusion of prisoners from cells during searches, including of legal correspondence, was unnecessary. There ought then to be a ‘general right’ for prisoners to be present when legal correspondence was examined. And on that basis the rule which the Home Secretary had made making exclusion from the cell mandatory during searches was held unlawful.

This, let us be clear, is not a legal discussion and does not concern the application of law. The application of law involves examining a rule and determining whether it applies to the facts. This is something different: it is anti-law. It is simply a conversation about what would be good policy. And that is a political, not a legal exercise. It is deliberative, and not judicial. It is a matter which politicians, answerable to voters and with a sophisticated understanding of the subject matter, are much better equipped to deal with than judges. And this is why, of course, Parliament legislated to give the power to make prison rules to the Home Secretary and not judges in the first place.

Regular readers will therefore see in the decision in Daly pure Schmittian ‘decisionism’ in action. The law says one thing on paper, but when it comes to actually being applied, the judge does not refer to what is on paper (i.e., the Home Secretary gets to make the rules in prisons) at all. Instead, he says (I slightly oversimplify) ‘I reckon the outcome should be X, and I’m the one who gets to make the decision, so yah boo sucks.’ What is on paper is thus made irrelevant, and it is revealed that the ontology of law is the decision of the judge, and not the actual rules.

Since the essence of law is the governing of conduct by rules, then, the entire procedure is hereby shown not to be an exercise in applying law at all, but something else: a kind of anti-law, where what matters is not the literal rules, but what the individual judge reckons the outcome should be. Lord Bingham and his cronies begin with the desired result – it feels to them that there is something undesirable about excluding all prisoners from cells when searching legal correspondence – and they work backwards from there. If the rules do not fit that outcome, then that’s fine, because they can be ignored on the basis that a fundamental right is at stake. Never mind that said right is not really being restricted except in a tendentious and hypothetical sense (prisoners may ‘feel unwilling’ to express themselves with ‘unreserved candour’), and never mind that those with expertise in the prison system believe that restriction to be important in respect of public safety. What trumps all is the opinion of the judges, conceived not as humble servants of the law, but policymakers extraordinaire. They know better than the Home Secretary or the Director General of HM Prisons about the management of prisons. And what they say goes.

It is no accident that Daly was one of the last human rights cases to be heard applying the law as it stood prior to the enactment of the HRA, and it is generally lauded these days as a bridge between the old era and the new. (It is widely referenced because of obiter comments in some of the judgments to the effect that human rights have always existed within the common law, a little like an HR Giger alien, bursting to get out.) Human rights, as I have written before, are really best understood as the place where law goes to die, precisely because they antagonistically remove rules from the table, in the manner in which we can see in Daly, and replace them with pure deliberative dinner-party decision-making on the part of the judge. He is no longer in the world of rules but in the world of fast-and-loose opinion. And his decisions are not really law at all, but something like the applied received wisdom of his class.

This is the basic problem with, and the essence of, judicial recklessness. It is the pushing of concepts which are sensible and prudent, like the principle of legality, into areas where they can only be applied in the form of imprudent interventions in policy – generally under the guise of rights. And this, to reiterate, was already an entrenched practice 25 years ago. We have had a lot of judicial recklessness since then, but we still only begin to intuit the consequences and think through solutions. I will have a little more to say about this in my next post.

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This article (Judicial Recklessness) was created and published by News from Uncibal and is republished here under “Fair Use”

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