Book Review
Craies on Legislation: A Practitioners’ Guide to the Nature, Process, Effect and Interpretation of Legislation & First Supplement, by Daniel Greenberg [London: Sweet & Maxwell]. 2012/13. lxxxiii, 1192 pp. / 133 pp. Hardback £400 / Paperback (Supp) £85. ISBN: 9780414024526 / 9780414032163.]
Every artist requires his tools.
When combined with skill, talent, and experience, these tools create the
product upon which the artisan’s reputation is made and maintained. In the end, much attention is focused
on the finished product and very little on the tools. We admire Vermeer’s masterpieces without thinking of the pigments
which he laboured over ceaselessly. In Craies
on Legislation, Sweet and Maxwell have succeeded in publishing an absolutely
indispensable tool for the drafter and interpreter of legislation. At the editorial helm is Daniel
Greenberg, a barrister and former Parliamentary Counsel at Whitehall, who is
also the Editor of the Statute Law Review. In his capable hands rests a publication
of a fine pedigree dating back to its first edition in 1907, itself founded on
Henry Hardcastle’s On Statute Law
from 1867. The title was in hiatus
between 1971 and 2004 for a variety of reasons, but the project to update and
bring the title back to life was wisely made in light of the proliferation of
statutes in the preceding decades.
Due in large measure to Greenberg’s remarkable effort, Craies is now, deservedly, the leading
source for matters relating to statutory drafting and interpretation.
In 1936, the Cambridge Law Journal
made an observation that is true to this day: “It is a tradition of
[British] legal education that little, if any, attention is paid to Statute Law
…”. Lord Wilberforce once even referred
to the interpretation of statutes as a “non-subject”. This is particularly shocking considering how much of the
litigation in high courts and the UK Supreme Court is comprised of cases arguing
about the meaning of various statutory provisions. This has been especially the case with the UK’s membership of
the European Union and the enactment of the Human Rights Act 1998. Indeed, it is difficult for a legal
practioner to go an entire day without the need to review a statutory provision
or instrument. Therefore, the need
for practitioners to have Craies at
their fingertips is greater than ever.
The new, tenth edition of Craies
on Legislation is a much welcome addition to the literature of statutory
interpretation. While Odger and Maxwell are now dated, Cross:
Statutory Interpretation and Bennion
on Statutory Interpretation are regularly referenced and relied upon. In its current form, Craies is composed of five parts, labelled
‘The Nature of Legislation’, which covers basic concepts, Acts of Parliament,
subordinate legislation, and devolved legislation; ‘The Legislative Process’,
which covers the process of all types of legislative instruments; ‘The Effect
of Legislation’, which entails timing, extent and application, statutory
rights, errors in legislation, etc.; ‘The Interpretation of Legislation’, which
covers the rules of statutory interpretation; and, ‘European Legislation’,
which discusses the nature, process, effect and interpretation of European
legislation.
The first three chapters of this book should be required reading for
every law student, trainee, and practicing lawyer. In simple, elegant language, the text lays out the history,
meaning, and nuances of statutory law.
The fourth and seventh chapters are of keen interest to this reviewer as
they deal with devolved legislation, especially Scotland. After introducing the Scotland Act
1998, which created in Scotland a new Scottish Parliament and a Scottish Executive
(now Scottish Government), the text in chapter 4 states in reference to s. 28
of the Scotland Act:
“The essence of
this is that the Scottish Parliament is given the power to legislate by Act,
and once an Act is passed it is to be judicially noticed in the same manner as
an Act of the Westminster Parliament (that is to say it can be cited to the
courts anywhere in the United Kingdom as a matter of fact and does not require
proof of authenticity).”
A footnote clarifies that:
“The use of the
expression ‘Act’ is, of course, designed to indicate that within the devolved
competence the Scottish Parliament has an area of complete control and
sovereignty very similar to, although derived from, that of the Westminster
Parliament. In particular, the
Acts of the Scottish Parliament are expected to sub-delegate powers to make subordinate
instruments, which are to be treated for many purposes in a manner similar to
instruments made under Acts of the Westminster Parliament.”
Section 2 of the chapter then
goes on to discuss the legislative competence of the Scottish Parliament and
those matters reserved by the Westminster Parliament. There is also an engaging discussion of challenges to the
legislative competence of Acts of the Scottish Parliament, particularly the
statements of Lords Kerr, Hope and the late Lord Rodger in Martin v HMA with respect to devolution. While covering the basics and covering them well, this
section on Scotland could be considerably more robust and, according to the
editor, it seems there are plans to make it so in the next supplementary
update.
The heart of Craies lies in part 4, the
Interpretation of Legislation.
There, the text has detailed and clear treatments on the canons of
construction: the cardinal rule, literal or purposive interpretation, the Human
Rights Act, the rule in Pepper v Hart,
among others. The chapter on Pepper v Hart, the House of Lords
decision which allows a court to look at Parliamentary proceedings in order to give
meaning to an ambiguous provision, is particularly lucid, comprehensive, and well-referenced. In addition, in the Appendix to the
text, there is a helpful extract of Lord Browne-Wilkinson’s speech from the
case. Finally, in part 5, the apparent
complexity of European legislation and its process is presented in an easy but detailed
manner. There is enough
information about legislative instruments arising from the relevant treaties
and European institutions and their effects in the UK to be comprehensible
without overwhelming. For a more
detailed discussion, the practitioner would have to go to another, dedicated
treatise.
Craies on Legislation is truly a
magisterial work. For
practitioners in this field, it is an absolute must in their armoury; for
students or trainees, it is a must-read to prepare for a professional life in
which they will deal with statutes on a daily basis. To paraphrase the Modern
Law Review’s acknowledgement of Sir Charles Odger’s efforts on behalf of Craies in the 1950s, Daniel Greenberg is
to be congratulated on his heroic rescue of a treatise which was in danger of
falling into oblivion. It is an
effort which will benefit every practitioner, academic, and student who has the
privilege of perusing Craies pages.
Saamir K. Nizam
Scottish Parliamentary Review
31 December 2013
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Book Review
The Federal Reserve and the Financial Crisis, by Ben S.
Bernanke [Princeton: Princeton University Press. 2013. 144
pp. Hardback £13.95. ISBN: 9780691158730.]
Some years ago, during the heart of the most recent international
financial crisis, when AIG threatened to bring the world as we know it to a
halt, appeared the following line in the Financial Times attributed to Honoré de Balzac: “Show
me a fortune and I’ll show you a crime”.
Recently, I looked it up in his Le
Père
Goriot, where it actually reads: “Le secret des
grandes fortunes sans cause apparente est un crime oublié, parce qu'il a été
proprement fait”. This
translates roughly into: “The secret of a great fortune for which you are at a
loss to account is a crime that has never been found out, because it was
properly executed.” I prefer the
FT quote, as it more succinctly and elegantly captures the intended idea.
Similarly,
in The Federal Reserve and the Financial Crisis, the
Chairman of the Board of Governors of the Federal Reserve System, Ben S.
Bernanke has captured in a short book the role of the Fed, the origins of the
financial crisis, the Fed’s role in it, and finally, the aftermath. Delivered originally as a set of
lectures at George Washington University, Bernanke first clearly and concisely
educates the reader on the role of the central bank, its tools to achieve
desired results, its limitations. Then, in a measured and even tone, recites how the
financial crisis began and how the Fed had to respond to it.
From his elevated perch, Bernanke is well-situated to survey the
landscape in order to analyze exactly how this particular debacle unfolded. The Fed keeps a daily, almost hourly,
watch on various actors in the financial system though it is not the regulator
of record for any of them. In the course
of his examination, Bernanke makes this concession: the Fed should have allowed
Bear Stearns to fail in March 2008 instead of pushing it into a shotgun
marriage with JPMorgan. How would
it have done so? As Bernanke
explains, the Fed has two main tools to achieve its goals, the first is setting
monetary policy (e.g., interest rates) and the second, liquidity, that is,
short-term loans to financial institutions to cover a short-fall. In effect, Bernanke is saying that such
support should not have been extended to JP Morgan for the Bear Stearns deal. His explanation of why Lehman Brothers
was not so assisted in contrast: someone had to take a hit in light of the
revelations. Bernanke states:
“Finally, let me say a few words
about the consequences of the crisis. We did stop the meltdown. We
avoided what would have been, I think, a collapse of the global financial
system. But one thing that I was always sure of and the Federal Reserve
was always sure of was that a collapse of some of these big financial firms was
going to have very serious collateral consequences.”
In the ‘Aftermath
of the Crisis’ chapter, Bernanke adds:
“One of the conclusions
we can now draw, having looked at the history, is that rather than being some
ad hoc and unprecedented set of actions, the Fed's response was very much in
keeping with the historic role of the central banks, which is to provide lender
of last resort facilities in order to calm panic. What was
different about this crisis was that the institutional structure was different.
It was not the banks and depositors; it was broker-dealers and repo markets,
money market funds and commercial paper. What Bagehot invisioned when he
wrote Lombard Street in 1873.”
(Here
Bernanke is referring to Bagehot’s dictum that during a financial crisis “banks
should lend freely but only to solvent firms and only against good collateral
and at interest rates that are high enough to dissuade those borrowers that are
not genuinely in need”. [Tucker])
Reading
books by central bankers is not necessarily a cure for lethargy. But Bernanke’s style of writing – using
simple words and few statistics – helps the former professor of economics at
Princeton make difficult ideas interesting and easier to understand. In The
Federal Reserve and the Financial Crisis, Bernanke provides an
intelligent and readable account of what central banks do, what the Fed’s role
is in a financial crisis and how it acted in the most recent one. Interestingly, at the end of each
chapter there is a colloquy between students and the author in which answers
refine or amplify points made during the lecture. This is an excellent work which should be read first before
any other for an understanding of the global financial crisis and the Fed’s
role in it. There are questions
Bernanke does not address in this book: why didn’t the Fed see this problem
coming when whistle-blowers had previously alerted the authorities of the
mortgage-finance bubble, what exactly was Bernanke’s role in the AIG bailout,
and why did he overrule his staff who recommended AIG be allowed to fail. But if the reader wants to gain a solid
understanding of this subject, this book is the best place to start.
Saamir K.
Nizam
Scottish
Parliamentary Review
25
November 2013
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Book Review
Adam Ferguson in the Scottish Enlightenment: The Roman
Past and Europe’s Future, by Iain McDaniel [London: Harvard University
Press. 2013. 288 pp. Hardback £29.95.
ISBN: 9780674072961.]
Adam Ferguson was a philosopher and historian of the Scottish
Enlightenment. Born in Atholl,
Perthshire, he received his formal education at Edinburgh and St. Andrews
Universities before serving as a chaplain in the Black Watch. After resigning from the ministry, he became
professor of natural and (later) moral philosophy at Edinburgh from 1759,
transferring to the chair of mental and moral philosophy in 1764. He was
influenced by Francis Hutcheson (moral philosopher at Glasgow), and his network
of peers included Thomas Reid and Adam Smith, Joseph Black and David Hume.
Ferguson was, of course, the author of the renowned ‘Essay on the
History of Civil Society’ (1767). Ferguson
viewed humanity as social beings whose “supreme end’ was to achieve or attempt
to achieve perfection”. Politically, he was an Establishment figure who represented court-oriented
political opinion, having served as secretary to the British commissioners
seeking reconciliation with the rebellious American colonies. He dedicated the volumes on the Roman
Republic to George III. Perhaps
for this reason, among others, he never attained the acclaim of Adam Smith or
David Hume and, over time, slipped into relative obscurity outside the field of
Scottish Enlightenment.
Iain McDaniel, a Cambridge PhD whose research has focused on the
Scottish Enlightenment in general and Adam Ferguson in particular, is a
lecturer in intellectual history at the University of Sussex, having previously
taught at Cambridge, Ludwig-Maximilians-Universitat, Munich, and at University
College London. In Adam Ferguson in the Scottish Enlightenment:
The Roman Past and Europe’s Future (Adam
Ferguson), McDaniel does not spend too much time introducing us to his
subject. Over the 288 or so pages,
he first explains that Ferguson
viewed the essential political tug-of-war between civil and military
authorities as the central struggle of modern constitutional governments. For
an understanding of why nations slide into tyranny, Ferguson said, one must
look to Rome and its history. Such a study would show, according to Ferguson,
that the Rome fell because of the alliance between popular and militaristic
groups. He argued that democratic forces which formed to prevent tyranny could with
little effort be marshaled for the imposition of political oppression, as the
Napoleonic wars post-French Revolution would later prove.
In Adam Ferguson, McDaniel closely
examines Ferguson’s theory of civil government and liberty. McDaniel first goes back to show that Ferguson’s
work was an attempt to repair a hiatus in Montesquieu’s ‘Spirit of the Laws’, where he raised a critical question about the
relationship between civil and military powers in republics and monarchies; in
effect, can the two co-exist peacefully and answering in the negative. Ferguson proposed, instead, an
alternative model of the relationship between military service and political
authority in a modern ‘civil society.’ McDaniel develops this claim by setting Ferguson’s accounts
of aristocratic patriotism and modern monarchy against a range of European
analyses – the Roman being the chief among them - of the tensions and
compatibilities between liberty and different forms of social and political
inequality within modern European monarchies. In so doing, it intends to adjust and to refine conventional academic
thoughts of Ferguson’s place within Scottish, British and European narratives
on republican and monarchical government in the eighteenth century. While not entirely original (Frank
Turner, at Yale advanced similar arguments in the 1980s), it is a fresh look,
clearly argued and amply sourced.
This is a book by a serious scholar for serious readers. It is intended to remind briefly what
was the prevailing thought on this subject before Ferguson turned his attention
to it. Then, McDaniel brings his
evidence to bear on the argument that Ferguson’s observations and arguments
were, in fact, quite prescient as the struggle between democratic and military
forces in a society in the past and should be remembered in the future. In so doing, McDaniel, without ever
saying so, also argues that Ferguson’s name should be remembered
in the same vein as Montesquieu and Rousseau on the subject, and be more
valued along with other prominent members of the Scottish Enlightenment like
Smith and Hume. This reviewer will
leave to the reader the decision whether McDaniel succeeds in this task. But Adam Ferguson is an intellectually stimulating work the reader will not soon forget.
Saamir K. Nizam
Scottish Parliamentary Review
24 November 2013.
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Book Review
Alexander Wilson: The Scot Who Founded American
Ornithology, by Edward H. Burtt, Jr. and William E. Davis, Jr.
[London: Belknap/Harvard University Press. 2013. 464
pp. Hardback £25. ISBN: 9780674072558.]
There have been two great foreign-born ornithologists in America.
The best-known is the Frenchman, Audubon. This is the story of the other,
the Scotsman Alexander Wilson. In ‘Alexander Wilson: The Scot Who Founded American
Ornithology’, the authors, Edward H. Burtt, Jr., a professor of
zoology at Ohio Wesleyan University, and William E. Davis, Jr., professor
emeritus at Boston University, have admirably brought to the forefront a
pioneering bird-watcher who has otherwise slipped away from common discourse on
the subject.
The story begins with another great Scotsman who became an
American. John Knox Witherspoon,
the brilliant republican Presbyterian minister, graduate of St. Andrews and
Edinburgh Universities, who went on to become president of the College of New
Jersey (now Princeton University), sign the American Declaration of
Independence and help draft the U.S. Constitution, did something quite
noteworthy on 10 July 1766: he christened Alexander Wilson at a small
Presbyterian church in Paisley, Scotland.
‘Sandy’ Wilson, as he was called, was born in Paisley, grew up on the
White Cart River and later moved to Lochwinnoch, places where he took long
walks and began observing the birds and waterfowl. Influenced by the bard, Burns, he wrote poems about his
observations. To earn a living,
Wilson became an apprenticed weaver and, noticing the poor working conditions
in mills, he wrote satirical poems.
One of these resulted in his arrest, imprisonment, and the poem to be
burned in public.
In the meantime, Wilson had read Rousseau’s Rights of Man and Paine’s Common
Sense, and looked west to where these ideas were taking hold. No surprise, then, that like many of
this fellow country-folk, he emigrated to America in 1794, eventually settling
in Pennsylvania. A chance
encounter with - and strong encouragement by - the prominent botanist William
Bartram set Wilson on a journey in ornithology, painting, and illustrating birds
and waterfowl of a young America. Wilson
ended up traveling 12,000 miles “on foot, on horseback, in a rowboat, and by
stage and ship, establishing a network of observers along the way.” The journey
resulted in the classic, 9-volume work ‘American
Ornithology’, which inspired Audubon on his own journey. At his death 1813, he was considered
America’s premier ornithologist.
Over time, his profession considered him the father of American
ornithology, but his identity was eclipsed by the work of Audubon. As Burtt and
Davis chronicle, Wilson “collected
and described birds from most states and territories in the United States from
1804-1813; he classified species according to the Linnaean system and placed
new species within the system; he illustrated all the species he described so
that readers could identify the birds that they saw.” Moreover, he “introduced a truly scientific approach to
ornithology – dissection to explore dietary and morphological detail, and used
behavioural, ecological, and quantitative observations.”
In ‘Alexander Wilson: The Scot Who
Founded American Ornithology’, Burtt and Davis bring back to life a
character who has escaped our consciousness. They do so in a fine book, exquisitely detailed with over 140
illustrations, and written in an engaging style, replete with history and
anecdotes of a time long past. Of
particular interest to bird enthusiasts will be Wilson’s systemology, which the
authors uncover and display from a field most of us know little about. Alexander Wilson, poet, naturalist, and
illustrator was also a true Scottish Enlightenment figure whose life and work
are admirably captured between these covers.
Book Review
On Glasgow and Edinburgh, by Robert
Crawford [London: Belknap/Harvard University Press. 2013. 368
pp. Hardback £35. ISBN: 9780674048881.]
Introduction
"It was the best of times, it was the worst of times, it was the
age of wisdom, it was the age of foolishness … .” The opening lines of Dickens’ A Tale of Two Cities in
a few words seems to capture the changing fortunes of Glasgow and Edinburgh
instead of London and Paris. These
two old cities, a mere 40 miles apart, have been fierce sibling rivals for over
400 years. Financial calamities,
constitutional changes, loss of nationhood, population shifts - these are just
some of the historical forces these two cities have suffered and benefitted
from, sometimes at the direct cost to the other. The good news is, as author Robert Crawford’s tale informs
us, Glasgow and Edinburgh weathered these storms and are today poised for
better times.
Robert Crawford, the Wardlaw Professor of English at the University of
St. Andrews, confronts a difficult task: to encapsulate half a millennia’s
story of two major cities in a relatively short work. He has succeeded.
Crawford has produced a careful and engaging work, which traces the
historical ebb and flows but does so while introducing Glasgow and Edinburgh as
a walking tour guide might do. The
‘Prelude’ gives a distinct taste of what is to come:
"Perhaps the
most intellectually honest way to go from the west-coast city to the east-coast
city would be to fly westward from Glasgow Airport over the Atlantic, North
America, northern Pacific, Asia, continental Europe, before descending over the
Firth of Forth on the eastern seaboard of Scotland and then landing on
Edinburgh Airport. That way, at
least one would arrive from Glasgow psychologically prepared."
Crawford’s journey begins in Edinburgh, at the majestic castle, down the
Royal Mile, on the Princes Street and New Town, through Leith and the Port,
before ending with a focus on Edinburgh staples such as the University, its
museums, and bloody past. The
beginning of Glasgow’s tour is labelled ‘City Hearts’ and refers to the great
medieval Cathedral, George Square, Queen Street, Glasgow Cross and Green, with
points and people in between.
Covering both cities, Crawford speaks of its prominent people and
events, both of which have shaped the history of Scotland and the world beyond,
especially America.
This reviewer particularly enjoyed the chapter in Edinburgh titled ‘The
Royal Mile: From Story to Parliament’, the narrative moving from the Castle
down Canongate towards Holyrood, with stops at the Museum of Edinburgh, John
Knox’s House, the Palace of Holyrood, before ending at the Scottish
Parliament. Along the way are
wonderful stories, of Major Weir, Deacon Brodie, Adam Smith, and the poets
Robert Burns and Robert Fergusson.
These stories are known locally, generally, but Crawford captures
details that surprise even the resident.
For example, on the capture of Deacon William Brodie in Holland, his
trial at Edinburgh’s High Court for charges of burglary, bank robbery and
related crimes, and his ultimate hanging on a gallows of his own design,
Crawford adds that:
"The Museum of Edinburgh has displayed to
generations of visitors the Brodie family Bible. The entry for William Brodie’s birth has been removed from
it – probably by his sister, Jean, after the shame of her brother’s hanging."
There is also a robust, well-deserved section on the Scottish
Parliament, a detailed account of its rather bewildering buildings, the buildings’
Catalan architect Enric Miralles, and the legislative institution’s workings
and political history since 1999. On
the Scottish Parliament he ventures an opinion perhaps shared by others:
“… for all it introduced free personal and
nursing care for elderly people and has resisted charging fees to Scottish
university students, the Parliament in Edinburgh during its first decade
produced comparatively little distinctive legislation. It may be that it has still some
developing to do before it lives up fully to the deep and complex imagination
behind its buildings at Holyrood.”
There are shortcomings in the book. The discussions on various places, people, and events seem
brief, even superficial at times. It
certainly would have benefitted from more pictures. It is particularly light on the social (e.g., growth of
immigrant populations) and economic events (i.e., the recent financial crisis),
which have so affected each city significantly. Perhaps that is to be expected from a work of this size – it
simply cannot cover everything. On Glasgow and Edinburgh does not have
the depth of Michael Fry’s Edinburgh: A
History of the City nor the literary style of Glasgow by Irene Mavers, but it is a graceful and stimulating tale
of two cities in its own right, which will stand the test of time.
Saamir K. Nizam
Scottish Parliamentary Review
10 November 2013
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Book Review
What W. H. Auden Can Do for You
by
Alexander
McCall Smith
Cloth
| Princeton University Press 2013 | $19.95 / £13.95 | ISBN:
9780691144733
152 pp.
Introduction
Almost 20 years ago, Four Weddings
and a Funeral introduced a new generation to the poetry of Wystan Hugh Auden
by reciting his 'Funeral Blues' in a memorable scene. The popularity of the film also brought Auden to the attention
of a vast new international audience, but perhaps in a very superficial
way. People who knew nothing of
Auden could still, on the appropriate occasion, recite the timeless lines:
He was my North, my
South, my East and West,
My working week and my
Sunday rest.
My noon, my midnight, my
talk, my song;
I thought that love would
last forever, I was wrong.
Now, in What W. H. Auden Can Do For
You, Alexander McCall Smith (AMS), the Emeritus Professor of Medical Law at
the University of Edinburgh and renowned author of fiction and non-fiction, has
written a deeply personal account of Auden’s poetry and its meaning in the
author’s life. AMS begins his introduction
of Auden appropriately with a brief account of his life, his birth in 1907 to a
middle class family in York, boarding school at Gresham, studying English
literature at Christ Church, Oxford, on to Berlin, New York City (over 30
years), back to Oxford and his eventual passing in Vienna in 1973 and burial in
Kirschstetten, Austria, where he used to spend his summers. Even this brief accounting is a
pleasure to read and provides some choice observations. For instance, in recounting that
Gresham was a tolerant school not given to the corporal punishment so popular
at the time, AMS writes: “The English are unwittingly cruel to their children,
which is something the Italians, to think of one example, have never been.”
The author crossed paths with his subject only once, in the early 1970s,
when attending a reading in Edinburgh by the unkempt Auden while “the fly-buttons of his
trousers were undone”. Soon after
the reading, AMS returned to his teaching post in Belfast, and one day read on a front page ‘Auden Dies’. Of
his response, he writes:
I walked the rest of the way home feeling that
curious emptiness that can sometimes come after receiving the news of a
death. This emptiness can
sometimes seem all the greater when you did not know the person who has died,
but you admired him or her. … I felt that a great humane voice had been
silenced.
What W. H. Auden Can Do For Y0u is a short
(152 pages), almost pocket-sized work, written in crystal clear language, which
lucidly reflects the author’s engagement with his subject’s poetry, in
different ways and at different times of his life. While analysing the meaning of Auden’s lines to him, AMS
does not shy away from the significant criticism Auden attracted during and
after his lifetime. AMS leaves the
larger arguments to Prof. Edward Mendelson, the Auden expert at Columbia
University and the literary executor of the Auden Estate; this work is not the
appropriate venue for those discussions.
This work succeeds at two different levels: it introduces the reader to
Auden and his poetry, and more importantly (and as the title suggests), it
gives guidance to the reader on how to live a more meaningful life. AMS writes at the culmination of his
introspection of Auden’s works:
I have learned so much from this poet. I have been transported by his
words. My life has been enriched
by his language. I have stopped
and thought, and thought, over so many of his lines. He can be with us in every part of our lives, showing us how
rich life can be, and how precious.
For that, I am more grateful to him than I can ever say.
It would seem that if AMS was speaking at Auden’s funeral in
Kirschstetten, these are the words he would say. Auden wrote ‘In As I Walked Out One Evening’ that “In
headaches and in worry, Vaguely life leaks away”. This reviewer would suggest that one read this book earlier
in your life, so you have the time to learn of Auden, read his poetry, and then
perhaps re-read those lines as your life unfolds. Like Sufi tales of old, the meaning of Auden’s lines will
change as you age.
Saamir K. Nizam
Scottish Parliamentary Review
3 November 2013
Saamir K. Nizam
Scottish Parliamentary Review
3 November 2013
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Book Review
Book Review
Judicial Review Handbook (6th edition), by Michael Fordham QC [Oxford: Hart Publishing 2012. xx, 870 (890) pp. Hardback £125. ISBN: 9781849461597.]
Judicial Review: Principles and Procedures by Jonathan Auburn, Jonathan Moffett, and Andrew Sharland [Oxford: Oxford University Press 2013. cxxxvii, 912 (1,056) pp. Hardback £195. ISBN: 9780199545094.
Introduction
The power of judicial review is at the heart of a liberal democracy. It is the central mechanism by which a democracy delivers its commitment to the rule of law. While these powers have been exercised more frequently in the past few decades, they are centuries old, an age echoed by the Latin-named remedies habeas corpus, certiorari, mandamus, quo warranto and the like. It should then be no surprise that it was Lord Coke who elegantly captured the notion of judicial review when he wrote: “[I]t appears in our books, that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against the common right or reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void.” (Dr. Bonham’s Case, 1610) The Glorious Revolution of 1688 is now remembered as Parliament’s victory over the Crown, but it was also a victory over the judiciary when the 1689 Bill of Rights declared that “proceedings in Parliament ought not to be questioned or impeached in court or any other place … .” The ensuing quarter century entrenched the notion of Parliamentary supremacy, with the judiciary showing growing deference to Parliament and the government from which it came. The zenith of Parliamentary power was perhaps during the late 19th - early 20th centuries, and captured by A.V. Dicey, the Vinerian Professor of English Law at Oxford, when he wrote that Parliament’s supremacy: “… means neither more nor less than this, namely, that Parliament … has under the English constitution, the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.” The noted Cambridge-trained jurist, Sir Stephen Sedley, correctly referred to this period as “the long sleep of judicial review in Britain.”
If the zenith of Parliamentary sovereignty was at one end of the spectrum, there have been significant milestones in past half century which have begun to swing the pendulum in the opposite direction, towards greater judicial review. The destructive aftermath of World War II, the disintegration of the British empire, the U.K.’s entry into the European Community in 1972, and perhaps most importantly, Parliament’s enactment of the Human Rights Act 1998, incorporating (with some reservations) the European Convention on Human Rights into domestic law, have all contributed to enhanced judicial scrutiny of Parliamentary and governmental action. Judicial review today is the process by which the High Court in London and the Court of Session in Edinburgh review decisions or actions by governmental actors to ensure they have acted in accordance with the law and not exceeded or abused their powers. It is a means of challenging public power, and Parliament. Consequently, the exercise of judicial review often draws rebuke from establishment supporters as undemocratic, that is, unelected judges over-stepping their authority and into the ambit of replacing their views for those of elected policy-makers.
This area of legal practice has grown at exponential rates, producing an increasing number of cases, complexities in the application of legal rules, and the degree to which public lawyers and academics have to be prepared in order to prevail in court or in lecture halls. To this battlefield appear two publications, works of considerable gravitas. Each will be considered in turn.
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Michael Fordham, QC is a barrister with Blackstone Chambers and most recently, also a Deputy High Court Judge at the Administrative Court. He has now produced the sixth edition of the Judicial Review Handbook, a sharper, leaner work which will prove just as invaluable to the public lawyer, novice or expert. Lord Woolf, who has been writing the ‘Forewords’ to each prior edition since the first in 1994, correctly refers to the Handbook as “an important part of the Judicial Review landscape.” Remarkably, Fordham still writes the work singlehandedly, by “reading as many of the cases” as possible and “trying to extract, classify and present illustrations and statements of principle.” He appears to have succeeded quite admirably.
The typical lawyer uses a practitioner’s manual in the following ways: either to refresh knowledge (or learn) about a particular point of law and find the relevant authorities, or, in the alternative, to look for a particular case(s) and see what its prominence is in preparation for written advice or court submission. For each of these uses, this work is ideal. The Handbook is neatly apportioned in four sections: nature of judicial review, parameters of judicial review, grounds for judicial review, and materials. These sections are subdivided in dozens of subsections which will helpfully guide the practitioner to quickly and easily to their destination. The Handbook comprises almost 900 pages, chock full of cases – over 4,700 of them! The table of cases in the back provides a list and helpfully guides the user to the appropriate sections where the case appears. For example, the notable case from 2011, AXA General Insurance Ltd v HM Advocate is cited 22 separate times, and in its various summaries, notes the name of the justice (e.g., Lords Reed and Hope in separate entries) before providing a succinct quote which captures the case’s importance to the relevant section. For this edition, Fordham has also added sections on ‘judicial review as a constitutional guarantee, judicial review of primary legislation, and the wider ramifications of the principle of legality. Finally, the ‘Materials’ section provides relevant sections of selected statutes (Senior Courts Act 1981, Human Rights Act 1998), practice directions, court guidance notes and procedures, and useful forms. In effect, everything a lawyer practicing in this area would need, in one package. If there are any improvements that could be made to this fine book, they are minor. In this age of the computer, an accompanying CD of cases would have been very helpful. Also, busy lawyers like as an alternative to the desk mainstay, a lighter paperback version to thumb through, carry around and use frequently. Hopefully, Hart will consider these options for the future.
In the meantime, it is hard to think of a better practitioner's resource, one which should also be in every law library for public officials, academics, and students alike.
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There is a new player on the judicial review landscape, a work of substance and merit which deserves close inspection. Judicial Review: Principles and Procedures by Jonathan Auburn, Jonathan Moffett, and Andrew Sharland is a manual of sorts for an in-depth understanding of the law of judicial review. Auburn is a barrister with 39 Essex Street Chambers, while Moffett and Sharland are situated at 11 King’s Bench Walk, and all are considerably experienced public and administrative lawyers. Their work is supported by Richard McManus QC (former counsel to the Crown) with 4-5 Gray’s Inn Square, and Marie Demetriou QC of Brick Court Chambers. Together, this team has produced a tome which – by all appearances - exhaustively covers the field of judicial review. The authors themselves indicate that they intended to “provide a guide to the law and practice of judicial review, written by practitioners for practitioners.” As Lord Dyson (MR) accurately confirms in his Foreword, the authors meet and surpass the challenge of producing “a clear, comprehensive and practical guide to judicial review … .”
But what exactly does all this mean? At well over 1,000 pages and 4,000 cases cited, one gets the impression that very little is left out. On a cursory review of the book, one may feel a bit overwhelmed by its depth and coverage; so intimidated, they might feel inclined to avoid reading it. That would be a mistake. The authors of this manual gracefully present a very complicated and detailed area of the law in clear, simple terms. The book is organised in seven sections, and 32 subsections to help the practitioner find the point of law she is seeking. Each of the seven parts first provides a skeletal ‘table of contents’ of sorts to inform the reader of the areas that particular section covers. Next, there is in each of the seven parts, a general introduction to that segment of judicial review, which clearly and succinctly reminds the reader of the meaning and breadth that subject entails. Finally, the section begins to reveal the substantive detailed law – the relevant case-notes and statutory provisions – which the practitioner will need in order to adequately grasp the finer points. Subsection after subsection was tested to gauge the clarity of the ‘introductions’ and following text, but none were found wanting. The text consistently maintained its clarity, despite the complexities of the law. The footnotes are robust and detailed, with a great deal of recent cases supporting or refining points raised in the established authorities north of the divider. As to the newer cases, often usable quotes are not cited, just the cases in general; but in a work of this nature and size, that is to be expected.
There are some shortcomings which seem unusual. The coverage of Scotland in particular, and devolved legislatures in general, is very cursory, this at a time when some of the most interesting issues related to public law have Scottish dimensions or involve devolution issues. In addition, this is a new work which should stand out from the crowd, and yet it provides no digital or website support for cases and statutory provisions. (Though it is available as an EBook.) For its price, the owner should be able to access new cases which have a bearing on points raised in the book. (For example, on 16th October 2013, the Supreme Court released its combined opinion in R (on the application of Chester) v Secretary of State for Justice, and McGeoch v The Lord President of the Council and another (Scotland), on appeal from the Inner House of the Court of Session (Scotland), judicial review cases dealing with the Human Rights Act 1998 and European Union law.) Hopefully, these matters will be addressed by the authors and/or publisher in the next edition.
This otherwise worthy manual on judicial review has been targeted for practitioners, and that is quite understandable, but it deserves to also be in the hands of public officials, academics and students. Unlike traditional textbooks on constitutional law, Judicial Review: Principles and Procedures is precisely the type of practical book that officials and advanced students should use. For all its theoretical foundations, law is at its core an applied profession and this book can inform and teach its subject with grace and even eloquence.
Saamir K. Nizam
Scottish Parliamentary Review
19 October 2013
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Book Review
Parliament and the Law, edited by
Alexander Horne, Gavin Drewry, and Dawn Oliver [Oxford: Hart Publishing. 2012. xxxiv, 370 pp.
Hardback £55. ISBN: 9781849462952.]
To paraphrase Walter Bagehot, the cure for admiring Parliament is to go
and look at it. Parliament and the Law, edited by
Alexander Horne, Gavin Drewry, and Dawn Oliver, is a careful and thoughtful
collection of essays which look at Parliament from a variety of perspectives as
part of the Hart Studies in Constitutional Law. The authors of the essays are constitutional lawyers,
parliamentary officials, and practitioners who make clear arguments in favour
of their points, supported by lively and notable evidence. While the book is targeted at “legal academics,
practitioners, political scientists, parliamentarians and parliamentary
officials and others interested in the relationships between Parliament and the
law”, it is clearly the public lawyer and legal academic who will peruse its
pages with most interest, followed not far by students of the institution.
The editors, Horne (a barrister with the Commons Research Service),
Drewry and Oliver (professors at Royal Holloway and U.C.L., respectively) had a
formidable task: how to capture the various intriguing issues surrounding Parliament
which have recently given rise to concern and debate, in a scholarly
fashion. It would seem they have
succeeded.
Parliament and the Law is divided
into three parts: privilege and conduct, Parliament’s internal arrangements
and, finally, rights, the constitution and the legal system. The first part familiarises the reader
with ideas such as ‘parliamentary privilege’ and ‘exclusive cognisance’. In this section by Liam Smyth (clerk of
journals to the Commons), there is a particularly interesting discussion of Members’
expenses and R v Chaytor, the case
which recently reduced the scope of parliamentary privilege. The book proceeds to the second part,
where it considers the legal and procedural advice to which parliamentarians
and officials can avail themselves.
Perhaps a bit oddly, this is the section which presents the most
stimulating part of the book, John McEldowney’s chapter on devolution with
respect to Scotland, Wales, and Northern Ireland and its impact on the Parliament
at Westminster. The author
provides a robust discussion of devolution with respect to Scotland, presenting
the factual and documentary history as a prelude to examining the impact of
devolution. As to Scottish
devolution and the role of the courts, McEldowney’s analysis of AXA General Insurance and others v The Lord
Advocate, Cadder (Peter) v HM
Advocate, and Fraser (Nat Gordon) v
HM Advocate was succinct but sharp.
His discussions of the ‘West Lothian Question’ and the ‘Sewel
Convention’ are informative, and will be of interest to any student of Scottish
public law. Finally, the third
section deals with some theoretical reflections on human rights and doctrines
such as parliamentary sovereignty and accountability. In that regard, Prof. (and co-editor) Dawn Oliver’s chapter
on Parliament and the courts provides a lucid, if orthodox defence of the
notion of the ‘legislative supremacy of Parliament’. Clearly a supporter of legislative supremacy, Oliver regrettably
spends too little time discussing the relative benefits of: constitutional
supremacy, a Supreme Court which may invalidate an Act of Parliament as ultra vires, or indeed, a written
constitution.
Parliament and the Law has many
fine attributes however. It covers a lot
of ground efficiently. While
tackling some of the most difficult public law issues which play out in the
realm of mass media, this book manages to lower the temperature, inform, and
educate in a relatively short space.
At just 377 pages, the authors and editors do an excellent job of
covering the topic, providing ample citations to cases, statutes and other
sources for further research. The
index was tested exhaustively during the reading and it came through each time. As a lover of footnotes, this reviewer appreciated
the depth and breadth of them, for example, the one provided by Murray Hunt
when discussing the place of law in Parliament. The legal advisor to the Joint Committee on Human Rights
states, quite correctly:
Legal advice
to law-makers might be useful because it alerts them to how courts might see
the law being enacted but at the end of the day it can be ignored if it is
disagreeable because Parliament is sovereign and can do as it wishes. [248]
Then, Mr. Hunt provides as an example, a letter from then Foreign
Secretary Jack Straw addressing the legal basis for the use of force in Iraq in
2003. Footnote 79 quotes Mr.
Straw’s letter stating to Michael Wood (legal adviser to the FCO):
I note your
advice [that the use of military action would be contrary to international
law], but I do not accept it. …
The rest of the footnote is worth reading and reminds one of the old
English proverb that “you can lead a horse to water but cannot make it drink”.
The anthology is replete with books on Parliament. Parliament
and the Law contributes to its field by providing very current analysis to
the legal issues that have recently confronted Parliament and will confront it
in the near future. Of particular
note to this reviewer is the book’s coverage of Scottish matters, the Scottish
Parliament and the upcoming referendum on independence, a topic the book covers
quite well. The only shortcoming
is a certain Diceyan approach to parliamentary sovereignty, which seems the
work’s sole imbalance. In short,
this is a work well worth the time and money one would invest in it.
Saamir K. Nizam
Scottish Parliamentary Review
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