Ashes and Sparks: Essays on Law and Justice
Cambridge University Press, 446pp, £19.99
Judges are not supposed to write for newspapers. Indeed, the munificence of the lord chancellor's pay packet was first fixed to compensate F E Smith, on taking that appointment, for having to relinquish his column in the News of the World. So it has been with "anxious pleasure" that the Rt Hon Lord Justice Sedley has covertly indulged his literary skills, confining them to the London Review of Books, an organ unlikely to be read either by his brethren or by his critics on the Daily Mail. It took three years before his heretical (but entirely logical) advocacy in its pages of a national DNA register was discovered by a reporter and turned into a front-page news story.
Now, after his recent retirement from the bench, Cambridge University Press has done a great service to constitutional scholarship by republishing the elegant essays of a lawyer who has been at the cutting edge of civil liberty law for the past half-century. He began as a young barrister by defending the underground press and alleged IRA bombers, and became a QC pushing forward the boundaries of claims against the state by prisoners and immigrants. Then a touch of the wand of a good fairy (the impartial Lord Mackay) translated him to the high court (and later the Court of Appeal), from whence he has been dispensing justice, most notably by skilfully grafting Human Rights Act guarantees on to our inadequate common and statute law.
In this book, we are able to appreciate the intellectual depth and historical sweep behind Sedley's forensic struggles to untangle constitutional law without the help of a written constitution. After all, this is a rare judge who has the execution of the Levellers at Burford engraved on his heart, and can rail against the "studied inattention" given by constitutional historians to the 1653 Instrument of Government. When a blinkered American academic calls the 19th-century barrister and judge William Garrow a "trickster", Sedley has the knowledge to deride the claim. And when the European Court of Human Rights talks nonsense, as it often does, he demolishes its vacuous Europrose with Benthamite precision.
Sedley can take pleasure, as a heretic spared the flames, in how many of his early heresies have become orthodoxies. But he recognises the paradox of having once led the intellectual opposition to a bill of rights, yet becoming, 20 years later, the judge entrusted with explaining the merits of the Human Rights Act to the judiciary. It is amusing to compare and contrast in this book the 1992 essay "Human Rights - Who Needs Them?" with his realisation, in 2007, that everyone does.
Everyone except Rupert Murdoch, who he thinks has too many rights already. Several essays ponder the problems of legal intervention in journalism, and it is at this point that Sedley fails to convince me that a judicial "balancing act", in which free speech is often outweighed by an incoherent "right of privacy", is the way to go. However, this intractable issue involves a choice between arguments that are good and arguments that are better, and many (certainly many judges) will find his argument for a "balancing act" more attractive than my preference for a presumption in favour of free speech.
Although the book is too long and there is some overlap and repetition, it contains exceptionally clear thinking about the development of national (and international) justice systems. It should be a set text not only in law schools, but also on politics courses and wherever our so-called constitution is taught.
Fortunately, Ashes and Sparks includes several essays written before judicial office cramped its author's sardonic style. "Justice Miscarried" (1987) is one of the finest polemics in the English language - a tensed-up, coruscating broadside against the judicial mindset that, for so many years, refused to right wrongful convictions such as those of the Birmingham Six and Guildford Four. Other early work remains topical, notably his account of how the Bar and the bench suddenly discovered their humanitarian credentials when financial privileges were threatened by the Thatcherite axe:
What is wonderful to behold is a legal profession which has not been famous for its sensitivity to the inequalities of social power and wealth being shaken into the realisation that the defence of the unpopular and the unprivileged is the single shield which can now protect it from the burning brand of monetarism.
To the question "How many judges does it take to change a light bulb?" comes the joke response: "Change?" Sedley's life is both inspiration and testament to the possibility of changing the legal light bulb to give off a brighter glow - as is this first book. It may be that the tragedy of Tom Bingham's early death so soon after retirement and one small masterpiece (The Rule of Law) will induce Sedley to pick up his baton and produce the classic work on the British constitution that is yet to be written, and that will be necessary if "rights" are to be a matter for pride rather than suspicion. l
Geoffrey Robertson is the author of "The Case of the Pope: Vatican Accountability for Human Rights Abuse" (Penguin, £6.99)