Lord Denning and Open Government D. G. T. Williams '-* In a judgment delivered less than a week before his retirement, Lord Denning spoke of the current demand for "open government" - adding that it is something which "is voiced mainly by newsmen and critics and oppositions." I The tone of his remarks is at first sight surprising: for he, more than anyone else, had given judicial support for greater openness in government at alllcvc\s. This support had been evident in his ex officio work as chairman of the Advisory Council on Public Records, in several aspects of administrative law, in his response to purported extensions of criminal contempt of court, and most notably in his contribution to the developing law of "Crown privilege" or public interest immunity. Lord Denning's pronouncements in such areas do not, to employ the words of one academic commentator, provide "a body of doctrine reflecting a coherent and consistent philosophy." 2 But it is difficult for any judge to develop a coherent and consistent philosophy in the volatile field of constitutional and administrative law. The institutions vary, the statutory contexts differ, and it is misleading in most circumstances to rely upon a straightforward regard for precedent. There are well-established assumptions or presumptions or general concepts, of course, but a critical component of a judge's approach on public law must be the instinctive reaction to events. James Bradley Thayer, writing about Dicey, once spoke of the "strange contrivances" of the English Constitution as "a marvellous outcome of instinct, of a singular sense and apprehension, feeling its sure way over centuries";3 and Dicey himself, writing about federalism, described federal notions as "absolutely foreign to the historical and, so to speak, instinctive policy of English constitutionalists." 4 "Rouse Ball Professor of English Law and President of Wolfson College, University of Cambridge. I. Air Canada v. Secrelary of Slale for Trade (No.2) [1983] 1 All E.R. 161, 172. 2. J. A. G. Griffith, in an article ("A Judge who was always his own man") written after the announcement of Lord Denning's impending resignation in 1982: The Observer, 30 May 1982, at p. 8. On Lord Denning's resignation, see also Hugo Young ("Why Denning is Irreplaceable') in the SlInd(JY Times, 30 May 1982, at p. 15 and a leading article ("End of the Denning Era") in The Times, 30 July 1982, at p. II. A formal farewell ceremony in the Court of Appeal is reported in The Times, 31 July 1982, at p. 2. 3. James Bradley Thayer, "Dicey's Law of the English Constitution" (originally published 1885), reproduced in Thayer, Legal Essays (1908), pp. 191-206 at p. 191. 4. A. V. Dicey, bllrodllclion 10 Ihe SllId), oj Ihe COlISlillllion, 8th ed. (1915), at xc. 117 THE DENNING LAW JOURNAL Lord Denning readily applied the historical and instinctive policy of English constitutionalists, working out the Constitution "on purely practical grounds based on our own experience and on our own needs." 5 Historical references abound in his judgments, with comments about distinguished lawyers of the past,6 about real or fictional cases of the past,? about famous sites or events,S and about his own experience.9 He was fascinated by historical by-roads, as in his account of the "delightful little treaty" of -1794 with the Micmacs of New Brunswick - a treaty in which the King of England promised an Indian king and his brother that he would provide for them and for the future generation "so long as the sun rises and river flows." 10 From his sense of the continuity of constitutional guidelines in English history, Lord Denning developed an instinctive appreciation of the balancing process inheren~ in matters of constitutional and administrative law. His historical references, obvious as many of them might seem, were utilised to reinforce both his constitutional assumptions of individual freedom and his view of the competing, changing demands of government and society. His constitutional assumptions favoured ordinary people - ranging from "men who work at the smithy shoeing horses, at the mill grinding corn, or at the saw mills cutting up wood" II to "self-employed and small shopkeepers, good men and true who pay 5. Lord Justice Denning, "The Independence of the Judges" (Presidential Address of the Holdsworth Club of the Faculty of Law, University of Birmingham, delivered on 16June 1950), reproduced in The Lawyer and Juslice (ed. Brian W. Harvey) (1978), pp. 55, 56. See Geoffrey Marshall, Conslilulional Theory (J 97 I), at pp. 86-90 (relating to Lord Denning's Romanes Lecture of 1959, From Precedmllo Precedml). 6. Sir Edward Coke is often referred to (see, e.g., Cimlamondv. BrilishAirportsAulhority [1980] 2 All E.R. 368, 370 linking the six carpenters to six car-hire drivers) and so are less well-known figures such as Macmorron K.C. (referred to as"the acknowledged expert of his time on local government law") in R. v. Clerk 10 Lancashire Police Commillee, ex p. Hook [1980] 2 All E.R. 353, 359. 7. The general warrant cases are given considerable prominence, not only in Chic Fashions (West Wales) Ltd. v.Jones [1968] I All E.R. 229, 233 and Ghani v.Jones [1969] 3 All E.R. 1700,1703 but also in R. v. Inland Revenue Commissioners, ex p. Rossminsler Ltd. [1979] 3 All E.R. 385, 398 (where Lord Denning compared the "military style operation" there to "that Saturday, 30th April 1763, when the Secretary of State issued a general warrant by which he authorised the King's messengers to arrest John Wilkes and seize all his books and papers"). A fictional case injected into a comment about legal delays wasJarndycev.Jarndyce from Bleak House (see BUlles Gas and Oil Co. v. Hammer (No.3) [1980] 3 All E.R. 475, 480). 8. See, for instance, Lord Denning's remarks about the Pilgrim's Way (HaYMn v. Ke,u County Council [1978] 2 All E.R. 97, 99-100), about George Stephenson's engine l(111m v. Gul/Oil Refining Lid. [1979] 3 All E.R. 1008,1012) and about the Peterloo Massacre (Hubbardv. Pill [1975] 3 All E.R. 1, 10). 9. In CitmamO/ld v. Brilish Airporls AUlhority [1980] 2 All E.R. 368, 373 Lord Denning recalled the days when he drafted byelaws for the Southern Railway Company; in R. v. Greater London COUllcil,ex p. Blackbum [1976] 3 All E.R. 184, 186 he referred to the Obscene Publications Act 1959: "I remember it well. I attended the debates, and took part." 1O. R. v. Secrelary of Stale Jor Foreign and Commonwealth Affairs, exp. Indian AssociatiO/IofA Iberia [1982] 2 All E.R. 118, 124. II. Fawcell Properlies Ltd. v. Buckingham COllll1yCouncil [1960] 3 W.L.R. 831, 852-853 (H.L.). 12. R. v. bdand Revenue CommissiO/lers, ex p. N.F.S.S.B. [1980] 2 All E.R. 378, 388. 118 LORD DENNING AND OPEN GOVERNMENT their taxes" 13 - in their bewilderment with big organisations, governmental or otherwise; they favoured local self-government (which he saw as "an important part of our constitution" 13); they favoured freedom of speech, freedom of assembly, personal freedom, freedom of property, and contemporary ideas about privacy and the right to work.14 These and other assumptions are explicit or implicit in countless judgments delivered by Lord Denning from 1944 to 1982; but they were not applied in a vacuum and Lord Denning has recognised, as all judges in constitutional matters (not least those in the Supreme Court of the United StateslS) have to recognise, that some assumptions may have to be displaced from time to time. In the area of public order, for instance, Lord Denning has eloquently spoken of "the right to meet together, to go in procession, to demonstrate and to protest on matters of public concern" as something which must be done "peaceably and in good order without threats or incitement to violence or obstruction to traffic." 16 The integrity of a man's home, based on Chatham's claim that the "poorest man may in his cottage bid defiance to all the forces of the Crown", is asserted: but exceptions are allowed in the public interest.17 Open justice has to be measured against respect for privacy and confidentiality;18freedom of expression should not become a licence to publish pornography; 19freedom of association (especially the freedom to form trade unions) must be assessed against other values in society;2o and personal freedom must give way to a police officer's reasonable powers of restraint.21 The manner in which the balance was tilted was frequently controversial, so much so that one writer has described Lord Denning's championship of 'freedom' as "positively perverse",22 and few would wish to 13. Norwich City Council v. Secretary of State for the Environmmt [1982] 1 All E.R. 737, 745. See also, Webb v. Minister of Housing and Local Governmmt [1965] 2 All E.R. 193, 203. 14. See generally, Sir Alfred Denning, Freedom tmder the Law (Hamlyn Lectures, 1949); Sir Alfred Denning, The Road /0 Justice (1955); Lord Denning, The Due Process of Law (1980); Lord Denning, What Next in the Law? (1982). 15. See Archibald Cox, The Role of the Supreme Court in American Government (the Chichele Lectures, 1975) (1976). 16. Hubbard v. Pitt [1975] 3 All E.R. 1, 10. See also, Kent v.Metropolitan Police Commissioner, Times L.R. for 14 May 1981 (The Times, 15 May 1981, at p. 12) and R. v. Chief Constable of the Devon alld Cornwall Constabulary, ex p. G.E.G.B. [1981J 3 All E.R. 826, 832. 17. Chic FashiollS (West Wales) Ltd. v.Jones [1968] 1 All E.R. 229, 233. See also, Ghani v.Jones [1969] 3 All E.R. 1700, 1705, where Lord Denning spoke of "the inIerest of society at large in finding out wrongdoers and repressing crime." 18. Home Office v. Hannan [1981J2 All E.R. 349, 363-364. 19. R. v. Metropolitan Police Commissioner, ex p. Blackburn (No.3) [1973] 1 All E.R. 324, 327-328; R. v. Greater Loniion Council, ex p. Blackburn [1976J 3 All E.R. 184, 188; R. v. Metropolitan Police Commissioner, ex p. Blackburn, The Times, Times L.R. for 6 March 1980 (The Times, 7 March 1980, at p. 10). In the House of Lords in 1959 (H.L., Vol. 216, c. 503, 2June 1959) Lord Denning stated: "To write literature is the proper use of freedom: to indulge in pornography is the abuse of it." 20. For a statement of Lord Denning's views on trade union legislation, see Bn'tish Broadcasting Corporation v. Hearn [1978] 1 All E.R. 111, 115-116. 21. Dal/ison v. Caffery [1965] 1 QB. 348, 367. 22. Patricia Hewitt, The Abuse of Power (Civil Liberties in the United Kingdom) (1982), at p. 243. See also, J. A. G. Griffith, The Politics of the Judiciary, 3rd ed. (1985). 119 THE DENNING LAW JOURNAL defend the former Master of the Rolls on all his rulings. Indeed Lord Denning himself has confessed to second thoughts.23 One of the most troublesome balancing exercises occurs where issues of national security are at stake. The difficulties - and, indeed, the temptation to tilt the balance in favour of the interests of the state24 - have been explored at length, both in special inquiries and in the courts of law; and the legal complexities were explored by M. L. Friedland in a study prepared for the McDonald Commission in Canada a few years ago.zs Judicial decisions since Lord Denning's retirement are a reminder of the difficulties.26 During his judicial career, Lord Denning, adopting what he took to be Parliament's intention, gave considerable weight to arguments of national security in matters of deportation;27 and a background of security doubtless made him unsympathetic in litigation over journalists' sources of information relating to the Vassall Inquiry.28 The Vassall Inquiry was to be followed, incidentally, by Lord Denning's investigation of the circumstances leading to the resignation of the Secretary of State for War. This investigation, the Report of which appeared in September 1963,29 involved Lord Denning in effect acting "as detective, solicitor, counsel and judge"; and, given its "serious defects in procedure", the public acceptance of the Report may - according to the Salmon Commission - "be regarded as a brilliant exception to what would normally occur when an inquiry is carried out under such conditions." 30 It might be added that hitherto few inquiries into matters of national security in this country have conformed with normal standards of procedure or publicity; and Lord Denning's extra-judicial venture was no exception. 23. See Lord Denning, What Next in the Law? (1982), at pp. 246-252, with reference to British Steel Corporation v. Granada [1981] I All E.R. 417. 24. Statement on the Findings of the Conference of Privy Councillors on Security, Cmd. 9715 of 1956, para. 16. 25. See M. L. Friedland, National Security: The Legal Dimensions (1979). See also, J. Ll. J. Edwards, Ministerial Responsibility for National Secrm'ty (1980) and C. E. S. Franks, Parlial1le1ltand Security Matle" (1979). The 3-volume Report of the McDona]d Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police appeared in 1981. See, more recently, the Report of the Special Comminee of the Senate on the Canadian Security Intelligence Service (Delicate Balance: A Security Intelligence Service in a Democratic Society) (Onawa, November 1983). 26. See Secretary of State for Defence v. Guardian Newspapm Ltd. [1984] ] All E.R. 453, (C.A.) (and the comments on national security at 458, 460 and 462); R. v. Secretary of State jor the Foreign and Commonwealth Office, exp. the CO/meilof Civil Service Unions, Times L.R. for 6 August 1984 (The Times, 7 August 1984, at p. 15). 27. See R. v. BrixtOl/ Prison (GovenlOr), expo Sob/ell [196213 All E.R. 641, 659 and R. v. Secretary of State for the Home Departmellt, ex p. Hosellball [1977] 3 All f.R. 452, 457. 28. Attonu;y-General v. Mulholland and Foster [1963] 1 All E.R. 767. See generally, C. J. Miller, Contempt of Court (1976), at pp. 58-61. The Vassall Inquiry was conducted by a Tribunal of Inquiry (under Viscount Radcliffe): its Report was published in April 1963 (Cmnd. 2009). 29. Lord Denning's Report, Cmnd. 2152 of 1963. Lord Denning referred to the investigation in R. v. Clerk to LlI1/cashire Police Committee, ex p. Hook [1980] 2 All E.R. 353, 356 and in Lonrho Ltd. v. Shell Petroleum Ltd. Times L.R. for 12 March 1980 (The Times, 13 March 1980, at p. 18). 30. Report of the Royal Commission into Tribunals of Inquiry, Cmnd. 312] of 1966, para. 21. See also, Sir Cyril Salmon, Tribltllals of IIlqui,)' (Lionel Cohen Lectures at the Hebrew University of Jerusalem, 14th Series, 1967), at pp. 13-15. 120 LORD DENNING AND OPEN GOVERNMENT From 1962, when he became Master of the Rolls, Lord Denning became involved with the wider sphere of openness in government. His chairmanship of the Advisory Council on Public Records brought him into regular contact with the operation of what was then the fifty-year (and was soon to become the thirty-year) rule.31 The Wilson Committee on Modern Public Records commented in 1981 on the initiative taken by the Advisory Council (under Lord Denning) in seeking a shortening of the basic closed period, and it was pointed out that the Council's views "have also carried weight in urging that 75 years should be the normal maximum closure for personally sensitive papers." 32 Perhaps his contact with the issues of closed files influenced Lord Denning's judicial approach in a case concerned with a local councillor's right of access to certain papers.33 Lord Denning's judicial approach towards all matters of secrecy was dictated by his own firm belief in freedom of the Press, by his rejection of excessive assertions of power by governmental and other bodies, and by his determination to avoid technicalities and seek solutions on a case-by-case basis. Where his attitude differed it was either in deference to Parliamentary wishes (for Lord Denning, despite arguments about his style of statutory interpretation,34 regarded Parliamentary sovereignty as "fundamental in our constitution" 35) or in response to conduct of which he disapproved. Varying expressions of disapproval can be found over the securing or handling of confidential documents in particular circumstances.36 But it would be unfortunate if an assessment of Lord Denning's contribution to open government were to be significantly affected by a handful of 31. See Report of the (Grigg) Committee on Departmental Records, Cmnd. 9163 of 1954, paras. 125-128 (on the responsibility of the Master of the Rolls for public records); Annual Reports of the Advisory Council on Public Records (a body established by the Public Records Act 1958); Report of the (Wilson) Committee on Modern Public Records (Selection and Access), Cmnd. 8204 of 1981, paras. 292-328; and the Government's Response to the Wilson Report, Modern Public Records, Cmnd. 8531 of 1982, paras. 46-48. In an Appendix to the 24th Report of the Annual Council (HCIO, 29 June 1983), a letter from Lord Denning and his colleagues (to the Lord Chancellor) comments on the Wilson Report and the Government Response. 32. Cmnd. 8204, para. 303. See generally, Colin Holmes, "Government Files and Privileged Access", Social His/ory vi. (1981), pp. 333-350 and Margaret Gowing, "Modern Public Records: Selection and Access. The Report of 'The Wilson Committee"', Social His/or)' V. (1981), pp. 351-357. The well-documented article by Colin Holmes is, in his own words, a "brief excursion into the complex, chaotic and variable world of government files and the obscure and shadowy world of privileged access." See also, D. G. 1'. Williams, "Official Secrecy in England", (1968) 3 Federal L.R. 20, pp. 47-50. 33. R. v. Clerk /0 Larlcashire PoliceAu/llOri(y, ex p. Hook [1980J 2 All E.R. 353 (dissenting judgment). See the later case of R. v. Bimlingham Ciry Dis/rict Council, ex p. 0, Times L.R. for 23 February 1982 (The Times, 23 February 1982, at p. 23). 34. See Dupor/ S/eels LId. v. Sirs [198011 All E.R. 529 (CA. and I-LL.) and, generally, Lord Denning, The Disciplille of Law (1979), Ch. 2. 35. Smi/n v. Inner LorldOlIEducatioll Authority [197811 All E.R. 411, 415. 36. Bri/ish Steel Corpora/iorl v. Granada Television Ltd. [1981] I All E.R. 417, 441-442; /-lome Office v. Harman [1981] 2 All E.R. 349, 363-364; and Air Canada v. Secre/aI)' of Slate for Trade (No.2) [198311 All E.R. 151, 180-181. For a hint of disapproval of cheque-book journalism, see Allowa)' v. Phillips ([nspec/orofTaxes) [1980] 3 All E.R. 138, 143. 121 THE DENNING LAW JOURNAL decisions where, rightly or wrongly, he allowed his judgments to be coloured by such sentiments. His belief in a free press has often been recorded, and in the Granada case Lord Denning asserted that investigative journalism "has proved itself as a valuable adjunct of the freedom of the press. Notably in the Watergate exposure in the United States and the Poulson exposure in this country.,,37 Lord Denning's vigorous approach to contempt of court is a classic reminder of his anxiety that investigations by the press should not be artificially hindered. An attempt to revitalise the law on scandalizing the court was brushed aside;38 he led the Court of Appeal in an unsuccessful attempt to discharge the injunction in the thalidomide case;39 the House of Lords ultimately endorsed his instinctive reluctance tQ extend the sanctions of contempt of court to the area of administrative tribunals;40 and the new time-limits in the Contempt of Court Act 1981 help substantially to avoid the evils of "gagging writs" to which Lord Denning drew attention on more than one occasion.4\ Lord Denning's rejection of abuse of power is central to his influential role in the development of what he termed a "well-organised and comprehensive" system of adminstrative law.42 His judicial contributions can be seen in such areas as error of law on the face of the record, jurisdictional error, and natural justice. In the application of the principles of natural justice to the operation of big public local inquiries, Lord Denning's views (again doubtless influenced by the background of access to information) were to be rejected by a majority of the House of Lords; but he articulated the views of many people in his assertion that there had "been a deplorable loss of confidence in these inquiries ... We must use our authority to see that inquiries are conducted fairly, in accordance with the requirements of natural justice."43 In the control of discretionary power, however, Lord Denning achieved some notable successes in the courts during the 1970s;44 though, as we shall see, his refusal to concede unfettered discretion even to ministers of the Crown had already been demonstrated in his approach to governmental secrecy. 37. [1981] 1 All E.R. 417, 441. See the attitudes to investigative journalism adopted by Lord Wilberforce in the House of Lords in the Grallatta case ([1981] 1 All E.R. 417, 455) and by the Court of Appeal in Blackshaw v. Lord [1983] 2 All E.R. 311, 325, 336, 339. 38. R. v. Metropolitan Police CommissiOller, ex p. Blackburn (No.2) [1968] 2 QB. ISO. 39. Altornry-General v. Times Newspapers Ltd. [1973] I All E.R. 815. See now the Contempt of Court Act 1981, s. 5 ("discussion of public affairs"). See, on the thalidomide decision in the Court of Appeal, a leading article ("In the Public Interest") in The Times, 17 February 1973, at p. IS: this stated that it "is good that the Court of Appeal has acknowledged that there may be occasions when the right to public comment is of supreme value." See generally, Harold Evans, Good Times, Bad Times (1984), Ch. 4. 40. Allornry-General v. British Broadcasting Corporatioll [1979] 3 All E.R. 45. 41. Wallersteiner v. Moir [1974] 3 All E.R. 217, 230. 42. O'Reilly v. Mackman [1982] 3 All E.R. 680,691. 43. The judgment of the Court of Appeal is discussed in Peter Levin, "Public Inquiries: the Need for Natural Justice", New Society, Vol. 50 (IS November 1979), at pp. 371-372. The decision of the House of Lords is reported as Bushell v. Secretary of State for the Environment [1981] A.C. 75. 44. See generally, Lord Denning, The Discipline of Law (1979), Part Two ("Misuse of Ministerial Powers"); H. W. R. Wade, Constill/tiOllal Fll1ldamentals (Hamlyn Lectures, 1980), Ch. 4. 122 LORD DENNING AND OPEN GOVERNMENT A rejection of technicalities - save, perhaps, when technicalities can be used to bolster individual rights or freedoms45 - is frequently found in Lord Denning's judgments.46 This approach is found from the outset in his attitude towards administrative law,47 and he recognised earlier than most "that adminstrative law is in a phase of active development and that the judges will adapt the rules ... to protect the rule of law." 48 Lord Denning's application of rules of locus standi4