23 results in Lions under the Throne
Dedication
- Stephen Sedley, University of Oxford
-
- Book:
- Lions under the Throne
- Published online:
- 05 November 2015
- Print publication:
- 03 September 2015, pp vi-vi
-
- Chapter
- Export citation
5 - The future of public law
- from Part I - Histories
- Stephen Sedley, University of Oxford
-
- Book:
- Lions under the Throne
- Published online:
- 05 November 2015
- Print publication:
- 03 September 2015, pp 107-120
-
- Chapter
- Export citation
-
Summary
This chapter reflects on some of the demands and strictures placed on modern public law. It then looks at two areas of potential development: the control of policy and the growth of a new paradigm of constitutionalism.
The Judge Over Your Shoulder
In his speech at the annual dinner of the Administrative Law Bar Association in 1987, the guest of honour, Sir John Donaldson MR, read out, to gales of laughter, the final checklist in a newly produced handbook for civil servants on how to avoid judicial review, entitled The Judge Over Your Shoulder. Before signing off a decision, the handbook advised, civil servants would do well to ask themselves such questions as:
Are you exercising the power for the purpose for which it was given?
Are you acting for the right reasons?
Have you made up your mind in advance …?
Do you propose to act in a way which a court may regard as … so unreasonable that it is likely to find against you?
Nobody had told the Master of the Rolls that the author of the handbook, the principal assistant Treasury Solicitor, Robert Ricks, was sitting a few feet away from him. Ricks took the laughter in good part; but a quarter of a century later, it may be his successors who are going to get the last laugh. The self-confidence with which the legal profession entered the 1990s, reflected both in the anxious tone of the civil service's handbook and in the amusement it generated among administrative lawyers, are no longer part of the landscape.
In the intervening years The Judge Over Your Shoulder has run through a series of editions, each considerably longer than the last. It now has to take in human rights, devolution and a growing range of EU law. But it remains laudably focused: its purpose, says the preface,
is not “How to survive judicial review” but rather to inform and improve the quality of administrative decision-making.
Frontmatter
- Stephen Sedley, University of Oxford
-
- Book:
- Lions under the Throne
- Published online:
- 05 November 2015
- Print publication:
- 03 September 2015, pp i-iv
-
- Chapter
- Export citation
10 - Public law and human rights
- from Part II - Themes
- Stephen Sedley, University of Oxford
-
- Book:
- Lions under the Throne
- Published online:
- 05 November 2015
- Print publication:
- 03 September 2015, pp 193-208
-
- Chapter
- Export citation
-
Summary
Human rights are not a recent invention. The common law has recognised many of them for centuries, but the Human Rights Act 1998 put them on a statutory footing. Has this made the common law less or more relevant?
Rights and wrongs
Human rights represent a claim on the state which every individual can make. Some claims, such as the right not to be tortured, are unqualified and, if torture is proved, unanswerable. Others, such as the right to private life or to free expression, are heavily qualified, making their applicability case- and fact-specific. But there is nothing in principle or in practice which confines human rights to the sphere of public law: they crop up daily in family law cases, in libel actions and in criminal trials.
Why then is the intersection of human rights and public law of any particular interest? There are at least two reasons. First, if human rights are legal claims on the state, the legality of state conduct is the business of public law. Secondly, the common law, of which public law is a key component, tends to mimic its environment like a chameleon. The constitutional environment in recent years has included a developing culture of human rights, and public law, without becoming a different creature, has begun to take some of its colour from it.
Pretty well the entire substance of English public law is common law. It has been declared, developed, modified and refined over five hundred years and more by the judges, though always with constitutional deference to what Parliament enacts. The minimal primary and slightly more extensive secondary legislation affecting public law has been almost entirely procedural. An attempt by Margaret Thatcher's administration to abolish judicial review was quietly abandoned; so was David Blunkett's threat, as Home Secretary, to take away judicial review and appeal in all asylum cases. But the endeavour to downgrade law returned with the appointment in 2012 of the first legally unqualified Lord Chancellor for three centuries, followed in 2014 by the appointment of two junior barristers as the law officers of the Crown. With the massive reduction of legal aid and the tabloid-led pressure to repeal the Human Rights Act, the future, as I write, is uncertain.
3 - New corn from old fields: the Hanoverian harvest
- from Part I - Histories
- Stephen Sedley, University of Oxford
-
- Book:
- Lions under the Throne
- Published online:
- 05 November 2015
- Print publication:
- 03 September 2015, pp 70-82
-
- Chapter
- Export citation
-
Summary
In the third quarter of the eighteenth century a series of governmental attempts to suppress public criticism produced a backlash which forced judges, juries and the law to take sides. They sided with personal liberty, with enduring consequences. This chapter looks among other things at how these developments have conditioned the extent and use of both ministerial and judicial powers.
The ministerial ascendancy
With somewhat artificial precision, Sir William Anson picked 1714, the year in which George of Hanover ascended the British throne, as the point at which the Crown ceased to govern through its ministers and ministers began to govern through the Crown. But his point was an important one. The settlement of 1689 had constitutionalised the monarchy and had at least begun to make it the political servant of Parliament; but the statutory Protestant succession, by placing on the throne a king who spoke no English and preferred to be in Hanover, decisively accelerated the transfer of political power from the monarch's personal secretaries of state to a political ministry deriving its authority from Parliament.
The rule of law
So too in the sphere of law, a full century before George ascended the throne, Coke in the Case of Prohibitions, had told James I that his judicial function was not his own: it was exercised in his name by his judges, and had been since the Norman Conquest. Historians have characterised Coke's mind as “essentially mediaeval” and his institutional thinking as “rooted in the historical past”; but Coke wore this as a badge of honour:
“Out of the old fields,” he wrote, “must come the new corne.”
Like other active jurists of the Jacobean years, Coke was able to reach back, past the autocratic regimes of the Tudors and the house of York, not only to Bracton in the mid-thirteenth century but to Henry VI's Chief Justice Sir John Fortescue who, writing in the mid-fifteenth century, had said that it was “not customary for the kings of England to sit in court or pronounce judgment themselves; and yet they are called the king's judgments”.
Introduction
- Stephen Sedley, University of Oxford
-
- Book:
- Lions under the Throne
- Published online:
- 05 November 2015
- Print publication:
- 03 September 2015, pp 1-20
-
- Chapter
- Export citation
-
Summary
The first part of this chapter sketches the early growth of English public law. The second part tries to describe what it was like to be involved in the modern take-off of public law as it roused itself from its long sleep.
It seems surprising, given the modern prominence of judicial review of governmental acts, that no panoptic history of the public law of England and Wales exists. By public law I mean the body of law, embracing both administrative and constitutional law, by which the state is regulated both institutionally and in its dealings with individuals. This book does not fill that large space: it is, rather, a series of test drillings into a landmass. The vertical drillings are thematic attempts to trace their topic from early days to the present. The horizontal ones (which are not sequential) take a stratum of time and examine developments in public law within it.
The public law of Scotland does not form part of the history which this book examines. Neither the union of the two crowns in 1603 nor the union of the two states in 1707 brought the English and Scottish systems together. Rather than risk trivialising or misrepresenting Scottish public law, these essays treat it with a respectful silence.
History and law
The distinction between the writing of legal history and the making of it was astutely described by Geoffrey Wilson:
[T]he courts do not operate on the basis of real history, the kind of history that is vulnerable to or determined by historical research. They operate on the basis of an assumed, conventional, one might even say consensual, history in which historical events and institutions often have a symbolic value.
That seems a harsh thing to say about a profession which sets great store by the accurate citation of precedent, but I think it is true. From Magna Carta to Anisminic by way of Entick v. Carrington, the common law and the constitutional culture of which it forms part have adopted not the letter of the law but the meanings which it has become appropriate to find in it. The zeitgeist is at least as potent as the scholar.
11 - The state and the law
- from Part II - Themes
- Stephen Sedley, University of Oxford
-
- Book:
- Lions under the Throne
- Published online:
- 05 November 2015
- Print publication:
- 03 September 2015, pp 209-228
-
- Chapter
- Export citation
-
Summary
The state – Hobbes’ Leviathan – despite its political and social solidity, is unknown to the common law. Like much else in our constitution, nobody planned it this way: one might say, as Mr Podsnap said to the foreign gentleman, that it was Bestowed Upon Us By Providence. This chapter considers how the law has come to terms with the state in the course of the centuries.
The state as a legal actor
The British state has no legal personality. Although criminal proceedings and judicial review claims are brought in the Queen's name, civil claims cannot name either the Queen or the state as the defendant. This means that the state cannot be directly sued for civil wrongs done by it or in its name. But since 1947 the Crown has been vicariously liable for torts committed by its officials (who have always been personally liable), and it is ordinarily bound by contracts entered into on its behalf. So long as some name is available in which to sue it – the Secretary of State for this or that, a nominated department, a corporate public authority, or as a last resort Her Majesty's Attorney-General – does it matter that neither the monarch nor the Crown nor the state which they represent can be impleaded by name?
Arguably it does, if only because it illustrates the surprising fact that in the twenty-first century the common law still possesses no solid or unitary concept of the state. Yet, as Janet McLean says:
There is a state tradition in British legal thought. It is contested, adjustable and complex. These features have given it the flexibility to adjust to changes in state institutions and functions.
The rule of law, in other words, depends in part upon the capacity of the common law to adapt itself to its historical and political environment.
1 - Lions in winter: public law in the twentieth century
- from Part I - Histories
- Stephen Sedley, University of Oxford
-
- Book:
- Lions under the Throne
- Published online:
- 05 November 2015
- Print publication:
- 03 September 2015, pp 23-44
-
- Chapter
- Export citation
-
Summary
Why did public law, at the height of its powers as it entered the twentieth century, go into prolonged hibernation? What brought it back to life?
The Wednesbury Gaumont
Once upon a time – in 1947 to be exact – in a small town in the west Midlands which has now vanished into the Birmingham conurbation, a sabbatarian group secured a majority of seats on the local council. One of their aims was to halt the growing disregard of Sunday as a day of rest and prayer and the use of the sabbath for secular entertainment. So, when the chain which owned the local Gaumont cinema applied to the council for permission to open on Sundays, the councillors granted the application (probably because they had been advised that they could not adopt a blanket policy of refusal), but made it a condition that the permission was not to include the admission of children under fifteen. For the sabbatarians this was a very satisfactory condition because it meant, in the days before universal television, that parents would not be able to go to the cinema on Sundays either, unless they were prepared to leave their children unsupervised in the house. Effectively the councillors had succeeded in keeping the Gaumont closed on Sundays.
The Sunday observance laws had for centuries forbidden Sunday entertainments. But by the 1930s cinema had become a mass entertainment medium. To enable picture houses to open on a Sunday, the one day when most working people were able to go, Parliament in 1932 passed the Sunday Entertainments Act, allowing local authorities to lift the ban on Sunday entertainments on such conditions as each authority thought fit to impose. This was the power which the Wednesbury councillors were using when they purported to allow the cinema in Walsall Street to open on Sundays provided no children were admitted.
4 - Parchment in the fire: public law in the Interregnum
- from Part I - Histories
- Stephen Sedley, University of Oxford
-
- Book:
- Lions under the Throne
- Published online:
- 05 November 2015
- Print publication:
- 03 September 2015, pp 83-106
-
- Chapter
- Export citation
-
Summary
Official history has not been generous to the republicans who in the middle years of the seventeenth century defeated the king in a civil war and tried to construct a democracy without a hereditary upper chamber or a monarchy. Their legislation, which has been deleted from the statute book, reveals a series of endeavours to reform the law in ways which it has taken most of the intervening centuries to retrace. It included, in the Instrument of Government 1653, Britain's first and only written constitution, on which the framers of the Bill of Rights twenty-five years later perceptibly drew.
Doing history
If the history you were taught at school is anything like the history I was taught at school, your picture of the mid-seventeenth century probably goes something like this:
In 1642, an army of republicans with cropped heads and round helmets, led by Oliver Cromwell, started a civil war which ended in 1649 with the defeat of the Cavaliers and the execution of King Charles I. The country was taken over by psalm-singing Puritans in tall hats and black cloaks, who closed the theatres, abolished Christmas and made everyone's life a misery until Charles II was restored to the throne in 1660. Not long afterwards, in 1689, the Glorious Revolution gave us a constitutional monarchy.
Or as Sellar and Yeatman immortally recounted it in 1066 and All That:
Charles I was a Cavalier King and therefore had a small pointed beard, long flowing curls, a large, flat, flowing hat and gay attire. The Roundheads, on the other hand, were clean-shaven and wore tall, conical hats, white ties and sombre garments. Under these circumstances a Civil War was inevitable.
When I read for the Bar in the early 1960s, the lecturer who taught legal history stopped when he reached 1649 and moved on directly to 1660 because, he explained, everything that had happened in between was a legal nullity. Using the same airbrush, the definitive edition of the Statutes at Large stops abruptly with the Long Parliament's first year, 1640–1, and resumes on the next page with the first acts of the Restoration parliament in the year 1660, “the twelfth year of the reign of our most gracious sovereign lord Charles the Second”.
8 - The right to be heard
- from Part II - Themes
- Stephen Sedley, University of Oxford
-
- Book:
- Lions under the Throne
- Published online:
- 05 November 2015
- Print publication:
- 03 September 2015, pp 159-171
-
- Chapter
- Export citation
-
Summary
If there are any self-evident truths in public law, one of them is the obligation of every decision-maker to learn both sides of a controversy before coming to a conclusion about it. Centuries of case-law say so; yet the twenty-first century has seen the principle steadily eroded. Are even the most basic principles artefacts of time and place?
“Everyone who decides anything”
Lord Loreburn, born Robert Reid in 1846, became a Liberal MP and in due course Attorney-General. A former supporter of the Boer cause, he became Lord Chancellor just before the great Liberal landslide of 1906, and in that capacity regularly presided in the Appellate Committee of the House of Lords. It was there that he delivered what Professor Wade later christened “Lord Loreburn's epitome” of the right to be heard:
… the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and listen fairly to both sides, for that is a duty lying upon everyone who decides anything. But I do not think they are bound to treat such a question as though it were a trial. … They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting anything prejudicial to their view.
Time and place
When it came to the legal status of women, the liberal Lord Loreburn was a dinosaur. In 1918 he moved the unsuccessful amendment which sought to remove from the Representation of the People Bill the section which was to give votes to women, making a speech of historic bigotry in the process. Nine years earlier, sitting judicially, he had held the legal disabilities of women to be so self-evident that
[i]t is incomprehensible … that anyone acquainted with our laws or the methods by which they are ascertained can think, if indeed anyone does think, there is room for argument on such a point.
13 - Law without courts: the tribunal system
- from Part II - Themes
- Stephen Sedley, University of Oxford
-
- Book:
- Lions under the Throne
- Published online:
- 05 November 2015
- Print publication:
- 03 September 2015, pp 247-268
-
- Chapter
- Export citation
-
Summary
There are more ways than one of resolving legal disputes. Are tribunals second-class courts or an innovative part of the legal system?
Dispute resolution
When people talk about the law, they are almost invariably talking, consciously or unconsciously, about the law administered in law courts. Yet there is nothing – or very little – to stop people agreeing to have their disputes settled either according to some extraneous system of law or by a person or tribunal bound by no particular system of law. The courts still hold the ring: it is they who will decide whether such agreements are enforceable and whether they have been properly followed. But within that perimeter many other kinds of law and practice prevail. The tabloid indignation which greeted the Archbishop of Canterbury's acknowledgment in 2008 that it might be acceptable for people to have their disputes settled according to the shari'a law was testimony enough to the widespread unawareness that this had been possible for centuries. Every golf club or bridge club committee which is given power by the rules to adjudicate on allegations of cheating constitutes what is sometimes called an Alsatia – a place where the royal writ does not run. But even here the law holds a watching brief, for the club rules generally form a contract between the members, and into it the courts will imply (if they are not already spelt out) rules of procedural fairness.
Public law claims
These are – at least in theory – voluntary or elective jurisdictions dealing with private law relationships. Relationships between the individual and state, which are the business not of private but of public law, cannot be dealt with in this way. If a dispute arises between state and citizen, either it has to go before a court or some other means has to be found of reaching a binding decision according to what may well be an arcane body of law.
There are two immediate problems in letting such decisions go before the regular courts of law. One is sheer volume. By the beginning of the twenty-first century, almost a million disputes of this kind were being decided each year, a number which had been growing steadily for well over a century.
14 - The rule of law
- from Part II - Themes
- Stephen Sedley, University of Oxford
-
- Book:
- Lions under the Throne
- Published online:
- 05 November 2015
- Print publication:
- 03 September 2015, pp 269-280
-
- Chapter
- Export citation
-
Summary
The idea of the rule of law – in fact the expression itself – comes from Dicey. What Dicey meant by it was historically flawed and juridically incomplete. But although what it means today is still contentious, the rule of law in one form or another is a criterion of civilisation.
Dicey and the rule of law
Everybody believes in the rule of law, but few people could tell you what it means, and for everyone who could tell you, there would be two others to say they were wrong. But we at least know, or think we know, that the concept originated with Albert Venn Dicey's Introduction to the Study of the Law of the Constitution, first published in 1885.
Dicey's book was divided into three parts. The first was “The Sovereignty of Parliament”, something which Dicey took to be fundamental, total and beyond challenge. As Brian Simpson wrote:
Dicey announced that it was the law that Parliament was omnicompetent, explained what this meant, and never devoted so much as a line to fulfilling the promise he made to demonstrate that this was so.
Moreover, when some three decades later Irish home rule returned to Parliament's agenda, Dicey changed his mind about its omnipotence. In the final edition of The Law of the Constitution in 1915 he lamented that parliamentary sovereignty had fallen prey to the party system – something that political scientists both before and after Dicey's time were well aware of.
Dicey's second section was “The Rule of Law”. His third dealt, much more briefly, with constitutional conventions.
A number of features of Dicey's extensive treatment of the rule of law deserve attention. He links it with what he calls “the omnipotence or undisputed supremacy” not only of Parliament but of central government, by which he means the Crown both in and out of Parliament. The failure to distinguish between the executive and the legislative limbs of the state is of a piece with Dicey's persistent denial that Britain had, or needed, any system of administrative law. This was not simple myopia; it was driven by Dicey's xenophobic antipathy to France and to civil law systems, which he regarded as autocratic and Napoleonic.
Contents
- Stephen Sedley, University of Oxford
-
- Book:
- Lions under the Throne
- Published online:
- 05 November 2015
- Print publication:
- 03 September 2015, pp vii-viii
-
- Chapter
- Export citation
12 - Standing and “sitting”
- from Part II - Themes
- Stephen Sedley, University of Oxford
-
- Book:
- Lions under the Throne
- Published online:
- 05 November 2015
- Print publication:
- 03 September 2015, pp 229-246
-
- Chapter
- Export citation
-
Summary
“It has been the practice,” said the chief baron of the Exchequer in 1835, “which I hope never will be discontinued, for the officers of the Crown to throw no difficulty in the way of any proceeding for the purpose of bringing matters before a court of justice, where any real point of difficulty that requires judicial decision has occurred”. Who can bring a public law claim? Who answers for the state? These are not merely technical questions: the effectiveness of the rule of law depends on the answers.
The privy counsellors
In 1916, when anti-German feeling was running high and anti-semitism was no less than it had been for centuries, Sir George Makgill, a Scottish baronet of extreme right-wing views, who as well as being a writer of boys’ fiction was the secretary of the Anti-German Union, brought judicial review proceedings to disqualify from membership of the Privy Council two Jewish financiers of German origin, Sir Ernest Cassel and Sir Edgar Speyer, both of them British subjects and major philanthropists. Makgill's application, although it failed both in the Queen's Bench and in the Court of Appeal, is of considerable legal interest for more than one reason.
First, the courts at both levels accepted that the prerogative power of the King to appoint whom he chose to be a privy counsellor was justiciable, and that it was arguable – though incorrect – that it did not extend to appointing naturalised counsellors. Secondly, and more directly material to the present topic, the divisional court rejected the submission of the Attorney-General, F. E. Smith QC, that the claim should be dismissed because Makgill had no standing to bring it. Only the Attorney-General, as guardian of the public interest, Smith argued, could bring such a question as this before a court of law.
“No”, said Lord Reading CJ; “Sir George Makgill appears to have brought this matter before the court on purely public grounds without any private interest to serve, and it is to the public advantage that the law should be declared by judicial authority. I think the court ought to incline to the assistance, and not to the hindrance, of the applicant in such a case …”
7 - The sovereignty of Parliament and the abuse of power
- from Part II - Themes
- Stephen Sedley, University of Oxford
-
- Book:
- Lions under the Throne
- Published online:
- 05 November 2015
- Print publication:
- 03 September 2015, pp 143-158
-
- Chapter
- Export citation
-
Summary
One of the future possibilities touched on in Chapter 5 was the development of a constitutionalism premised on the rule of law rather than solely on Parliamentary supremacy. This chapter looks at how, historically, this dualism has been managed, and at judicial control of abuses of power. A note is appended to it on the origin of the expression “ultra vires”.
Dr Bonham and the College of Physicians
Dr Bonham, a Cambridge-trained physician, set up a medical practice in London without the licence of the Royal College of Physicians. The college had him arrested and thrown into the Fleet prison. When he sued them for false imprisonment, the college censors pleaded their statute of incorporation, which empowered them to imprison or fine anyone who broke their regulations.
Although it was not necessary to his court's decision in favour of Bonham, Coke fastened on the impropriety of allowing a regulatory body to appropriate a share of the fines it imposed. Such a provision made every disciplinary cause the College's own and the College the judge of it. Coke's judgment in Bonham's Case denounces the impropriety of any such arrangement: it was an abuse of power, said Coke, and any fines should go to the Crown.
Parliament's powers
Had it stopped there, the case would still be important. Parliament today would never, one hopes, allow a statutory regulator to finance itself out of the fines it levied. But it was because, in Bonham's Case, Parliament had done just this that Coke confronted what is still a critical question in Britain: can even a sovereign Parliament legislate in violation of fundamental or natural law? Can it abuse its powers?
“In many cases,” said Coke, “the common law will control acts of parliament, and sometimes adjudge them to be utterly void: for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void.”
Epigraph
- Stephen Sedley, University of Oxford
-
- Book:
- Lions under the Throne
- Published online:
- 05 November 2015
- Print publication:
- 03 September 2015, pp v-v
-
- Chapter
- Export citation
Part I - Histories
- Stephen Sedley, University of Oxford
-
- Book:
- Lions under the Throne
- Published online:
- 05 November 2015
- Print publication:
- 03 September 2015, pp 21-22
-
- Chapter
- Export citation
9 - The separation of powers
- from Part II - Themes
- Stephen Sedley, University of Oxford
-
- Book:
- Lions under the Throne
- Published online:
- 05 November 2015
- Print publication:
- 03 September 2015, pp 172-192
-
- Chapter
- Export citation
-
Summary
Montesquieu's remark that without separation of the state's powers there would be an end of everything was always an overstatement, but it contained an important truth. This chapter suggests that the separation of powers in the British state, while it has long and deep historical roots, has never been a fixed set of relationships and may today be under critical stress.
What is it?
Everybody knows that the separation of powers is a good thing. It is less easy to say how it came to be this way. In 1748, when Montesquieu commended England as a model of the separation of powers in a democracy, judges still sat in Cabinet and the final court of appeal was the upper chamber of the legislature. But the myth took hold, as myths do. Within fifty years it had become solid doctrine in the French and American revolutions: unless the state's principal powers were in separate hands, there would be (in Montesquieu's phrase) an end of everything.
First, what does the separation of powers mean? In its platonic form it means that the legislative, executive and judicial functions of the state are carried out independently of one another. Plainly this is unreal: the judiciary has to be appointed and paid by a body other than itself; the law it interprets and applies has to be made in substantial part by a legislature; the legislature is largely dependent for its own functioning on the executive and its political heads – ministers who are almost invariably parliamentarians; the executive requires a parliamentary mandate for much of what it does; and the courts have to be able to say whether the executive is acting within its mandate.
There is nothing original about this notion of symbiosis. James Madison wrote in 1788 about the three core functions:
[U]nless these departments be so far connected and blended, as to give to each a constitutional control over the others, the degree of separation … essential to a free government can never in practice be duly maintained.
Part II - Themes
- Stephen Sedley, University of Oxford
-
- Book:
- Lions under the Throne
- Published online:
- 05 November 2015
- Print publication:
- 03 September 2015, pp 121-122
-
- Chapter
- Export citation
2 - The dark satanic mills: the Victorian state
- from Part I - Histories
- Stephen Sedley, University of Oxford
-
- Book:
- Lions under the Throne
- Published online:
- 05 November 2015
- Print publication:
- 03 September 2015, pp 45-69
-
- Chapter
- Export citation
-
Summary
When William Blake, in a prefatory verse to the epic poem Milton which he etched between 1804 and 1808, asked whether Jerusalem had been “builded here Among these dark Satanic Mills”, he was looking back in time. But when in the next stanza he called for his bow of burning gold and his arrows of desire and promised to fight on “Till we have built Jerusalem In England's green & pleasant land”, he was speaking for the generation which was to bring about the administrative and legal changes that did much to shape modern public law.
The Industrial Revolution
Great Britain's massive commercial, industrial and imperial takeoff in the nineteenth century was unanticipated, unprecedented, unplanned and pretty much uncontrolled. We have learnt to call it the Industrial Revolution, but the Victorians saw the spectacular growth of their trade and industry as progress rather than revolution. In a sense they were right. It was the conditions of the people which were most obviously revolutionised, as hundreds of thousands of displaced rural workers and famine-stricken immigrants swarmed into Britain's conurbations. The consequent proliferation of pollution, waste, disease, injury, poverty and unplanned development drove the more farsighted members of the political class into action and the courts from time to time into reaction.
This chapter looks at three interlocking elements of this teeming story: the use by Parliament of primary legislation to regulate commerce and industry, principally by hugely expanding executive and devolved powers; the deployment of these powers by central and local government and official bodies; and the use by the judiciary of old and new legal tools to keep public administration within the bounds of legality as the judges understood it. It was in the course of this multi-faceted process that much of what we have learned to regard as modern public law took shape. Why another generation of judges let it go to sleep for the first half of the twentieth century, and how in the latter half of that century it rose from what seemed to be the grave, are the two main questions addressed in the previous chapter.
![](/core/cambridge-core/public/images/lazy-loader.gif)