NEW LAWS FOR OLD? BY DENNIS THOMPSON

THERE is a general awareness that accession to the Rome Treaty would involve some changes in our laws. We should have to accept the rules at present existing in the Treaty, which represent Continental rather than English dunlung, and there might well be further changes as the European Community develops.

Some of the changes that we must accept involve new ideas, but these are not necessarily bad ones, and it may be that some of the changes will be a definite improvement.

There is a conservatism among lawyers who are seeped in the legal traditions of centuries, and a reluctance to receive fiesh notions fiom outside. English law and all that it has given to the world is a thmg of priceless worth, not lightly to be set aside without very good reason. Not only the laws themselves, but the spirit of the judges, the pro- fession and the academic enthusiasts have helped to raise the conception of British justice to the highest possible level.

It is important therefore to examine carefully the differences that may exist between the two conceptions of law in Europe, and to deter- mine the merits of each of them.

Professor Herbert A. Smith, writing in 1927; said: Blackstone taught many generations of law students to despise the foreigner, and

the strong, silent hosdity of English lawyers to European ideas has undoubtedly been responsible for many indefensible anomalies in our law.

It is as yet early days to be able to determine exactly where the differ- ences lie, and where the codc t s wdl be felt, but some distinctions are already becoming apparent.

The use of truvatrx prkparutoires in the interpretation of the Treaty itself is already a point which has caught the general eye. The Treaty itself and the regulations made under it are part of the law of the member states, and have to be applied by the municipal courts. In interpreting the provisions of the Treaty or the regulations the muni- cipal courts on the continent apply the same rules of interpretation as would be applied in the interpretation of an international treaty by an international court. In the event of Britain joining the Common

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Market the Rome Treaty would have to be made part of the law of Englanda (and, indeed, Scotland and Northern Ireland) and the same principles of interpretation would require to be adopted in all the countries of the Community. British courts would therefore be bound to interpret the Treaty provisions in the light of travaux pre'parutoires in appropriate cases. It may be thought that such an occurrence is not likely to arise often, as in cases of real difficulty a national court has power (and in certain cases a duty) to refer a question of interpretation to the European Court at Luxembourg under the provisions of Article 177 of the Treaty. Nevertheless, the rules of interpretation apply to the regulations, whch are now greater in bulk than the Treaty itself, and although they too may be the subject of a reference to Luxem- bourg, the general rules of interpretation must be capable of being understood and applied in the British courts.

Travaux pre'paratoires is the technical name given to the preparatory work in the negotiation of treaties. It is referred to when interpreting the provisions of a treaty where there is doubt as to its meaning. There is no need to refer to preparatory work where the text is clear, but Lord McNair, in his Law of Treaties, writes:3

It would hardly be an exaggeration to say that in alniost every case involving the interpretation of a treaty one or both of the parties seeks to invoke the preparatory work.

But preparatory work, he states,* 'should only be adrmtted when it affords evidence of the common intention of both or all parties'. It cannot therefore be ignored in the interpretation of treaties, and it may be that in the interpretation of the regulations it will be important. It is to be noted that it does not include e x yarte pronouncements of one side or the other, such as are to be found in statements in the national parliaments. It only applies to the work in wbch the parties are jointly involved, such as the present negotiations for British entry in Brussels, or the preparation by the Commission, the European Parliament and the Council of a regulation.

Such a principle has long been adopted abroad in respect of the interpretation of national legislation. The intentions of the legislature are often discernible by reference to the preparatory work in parlia- mentary debate, and t b s is regularly examined by the Supreme Court of the United States, as well as the French and German courts in interpreting national legislation.

Such a rule has not found favour in England, and the courts will not look at preparatory work in the case of the interpretation of statutes. The duty of the English court is to apply strict rules of construction to the statute.

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The law was plamly laid down by Chief Justice Cockburn in 1878, when he declared:6

W e are not, however, concerned with what Parliament intended, but only with what it has said in the statute. The statute is clear, and the parliamentary history of the statute is wisely inadmissible to explain it, if it is not.

Judge Lauterpacht examined the reason for this ‘stern rule of English law’, as he described it,6 and in his opinion it arose partly from the duence of the rules relating to the construction of written contracts. It was largely a matter of convenience and expediency whch led the courts to construe contracts by their terms rather than by the expressed intentions of the parties. Even where equity would grant rectification of a written contract, it would do so only on ‘irrefragable’ evidence that the intentions of the partics were contrary to the words of the written agreement.‘

A hrther reason put forward by Judge Lautcrpacht for the reluctance of the courts to look at Parliamentary debates is that a statute is the combined act of the Sovereign, Lords and Commons, and it would be invidious for the courts to refcr to deliberation in one chamber alone.

The rule, however, was not always so strict and has shifted over the centuries. There is the case of Chief Justice Hcngham who is reported to have said that he knew bettcr than counsel the meaning of the Statute of Westminster 11 (1285) as he was instrumental in drawing it up, and subsequent courts freely referred to proceedings in Parlia- ment

On the other hand the courts have always shown a much more liberal attitude in interpreting a treaty, even where the treaty has been incorporatcd in a statute. In interpreting a treaty between Great Britain and the Ottoman Empire in order to establish the law applicable in determining the risht to succession of certain property, thc distin- guished Dr. Lurhington said :9

I think, in construing these treaties, we ought to look at all the historical circum- stances attending theni, in order to ascertain what was the true intention of the contracting parties, and to give the widest scope to thc language of the treaties in order to embrace within it all the objects intended to be included.

In Portor v. Freudcnherg in 1915,’~ the Court of Appeal had to interpret Article 23 (h) of the Hague Convention of 1907 upon the Laws and Customs of War on Land, in the course of which Lord Reading, C. J., said:11

The text of the paragraph must of course be interpreted by us as it now stands in the ratified convention, and the intention of its proposer is immaterial, but it is only fair to add that the paragraph as originally proposed did not contain the words. . ., and instead of the words . . . the words were. . . (the words t h e m s e h s UYK iwimuterial

f o r the present purpose).

NEW LAWS FOR OLD? 281

In the case of The Leonora,'2 Sir Samuel Evans, President, quoted &om parliamentary utterances in interpreting the British Retaliatory Orders in Councd of 1807.

In a more recent case in the House of Lords,ls one of the points at issue was the interpretation of the Merchant Shipping (International Labour Conventions) Act, 1925, which was passed to give effect to the conventions drafted by the International Labour Office. The provisions of the convention had been paraphrased into the language of an English statute to fill into h e with the rest of the Merchant Shipping Acts. Having given his view as to the interpretation of the words in the English Act, Lord Blanesburgh added:14

Next, having reached the above conclusion without reference to the scheduled Convention which it is the purpose of the Act of I925 to give effect to, I would now inquire, merely as a matter of interest, whether the conclusion is or is not in accor- dance with that convention. My Lords, I cannot doubt that it is in complete accord therewith.

It may therefore be tha t in practice the English rules are not so very different from the Continental.

I1

One respect in whch English law differs substantially &om the law across the Channel is to be found in the attitude to judicial precedent. It may be that English judges have been held in greater regard than their Continental counterparts, and it is very possible that they have deserved it. It may also be that the circumstances in which judicial utterances have been made have been responsible for the greater care in their preparation, with a fd l knowledge of their consequences. It may also be the necessary result of there not being a filly detailed code of law to be applied in all circumstances. Whatever the reason, there is little doubt that greater force has been given to the dicta of judges in England than elsewhere and their words have had an authority among lawyers whch is second only to the scriptures.

One of the results of this has been- that every single decision has been regarded as a contribution to the d e f ~ t i o n of the law and a precedent to be followed in the future. It is, of course, a natural tendency of human nature to follow precedent in all fields of life, but among lawyers, with their training and experience, the desire to obey the precepts of the past is probably greater than elsewhere. It is only in English law, howevcr, that the principle of stare decisis has been so rigidly applied.15

It has always been the rule that previous decisions of a higher court should be followed, and provided that the ratio decidendi could be

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ascertained, the precedent was to be applied. This led to the citation of every single relevant case before a court where a point of law had to be decided, and a great deal of time was spent discussing the old authorities. Where the courts were unwilhg to follow what the previous decisions laid down, they distinguished the previous authority and found other grounds for their own judgments. Sometimes the process of hstinction reached great subtlety, but there were also occasions when the courts had no alternative but to follow the law which had been too plainly established in the earlier cases.

In early days in the development of the law there was considerable discretion in the cases that were reported. Sometimes decisions con- sidered to be bad were quietly suppressed. Lord Campbell had been a reporter at the beginning of the nineteenth century, and he canddly wrote :

I had a drawer marked ‘bad law’, into which I threw all the cases which seemed to me to be improperly ruled.le

It has also been suspected in more recent days that Sir Frederick Pollock, when he was in charge of the Law Reports, did the same, but such practice is hardly possible today.

There have been cases where great judges have been compelled to follow the decisions of superior courts even if they disagreed with them.

On one occasion Lord Justice Scrutton said that but for the help he had received fiom a previous decision in the House of Lords he would have been in danger of going wrong, and Lord Justice Atkin sitting with hun in the same case said ‘1 too would have gone wrong’.17

Not only did inferior courts have to follow the decisions of superior courts, but there grew up the practice of courts being rigidly bound by their own previous decisions. It was natural that a previous decision in the House of Lords should carry very great weight when sirmlar questions were later discussed in the same House, but the doctrine of stare decisis was gradually applied so that the House could not escape fiom its previous decisions.

The rule was finally crystallized in the case of London Street T r a m w a y s Co. Ltd. v. London County Councilla decided in 1898, when Lord Halsbury, with whom the other noble Lords concurred, said that the justification for the rule was: . . . the inconvenience-the disastrous inconvenience-of having each uestion subject to being reargued and the dealings of manlund rendered doubtfig by reason of Merent decisions, so that in truth and in fact there would be no red c l a l Court of Appeal.

This rule has been criticized on occasions in the House of Lords itself,

NEW LAWS FOR OLD? 283

but it has been obeyed. The last occasion when stare decisis was dis- cussed in the House of Lords was in December 1961, in Midland Silicones Ltd. v. Scwttons Ltd.lg when in the course of his judgment Viscount Simonds said :20

I would cast no doubt upon the doctrine of stare decisis, without which the law is at hazard. But I do reserve the right at least to say of any decision of this House that it does not depart from a long-established principle, and particularly does not do so without even mentioning it, unless that is made abundantly clear by the majority of the noble Lords who take part in it.

The qualifications to be put upon the strict rule were also referred to by Lord Reid, who said?

Unlike most supreme tribunals this House holds itself bound by its own previous decisions. . . . I have on more than one occasion stated my view that this rule is too rigid and that it does not in fact create certainty. In illustration of that I need go no further than the series of decisions in this House on workmen’s compensation. But I am bound by the rule until it is altered. . . .

I would c e r t d y not lightly disregard or depart from any ratio decidendi of this House. But there are at least three classes of case where I think we are entitled to question or limit it; first, where it is obscure; secondly, where the decision itself is out of h e with other authorities or established principles; and thirdly, where it is much wider than was necessary for the decision so that it becomes a question of how far it is proper to distinguish the earlier decision.

In the same case Lord Denning saidz2 that he was ‘not unduly attached to the strict doctrine of precedent’.

Since the dccision of 1898, other courts as well have determined that they too are bound by their own decisions. The Court of Appeal held in 1944 that it was bound by its own previous rul1ngs,a3 and the Divisional Court decided that it too was bound by its own decisions in 1947, though not without some subsequent criticism fiom Professor G ~ o d h a i t . ~ ~ Such a strict rule as existed in English law was never applied by the Privy Council,25 nor did it exist to the same extent in Scots law.Z6 As Lord Reid said in the passage from his speech referred to, it was an unusual rule that the House of Lords as a supreme tribunal should be bound by its own decisions. In other constitutions where the decisions of the supreme court could only be removed by a consti- tutional amendment, as in the United States, supreme courts have been careful not to allow themselves to fall into an inextricable position in declaring themselves to be bound by decisions which may later turn out to be contrary to the general trend ofjudicial thinking or social desirability. Thus it is that in most countries the supreme court allows itself more latitude in respect of previous precedents than others.

It was always supposed that a dccision of the House of Lords could be very easily reversed by a simple Act of Parliament, but in fact this

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did not happen in the past. The doctrine of ‘common employment’ embodied a rule which provided that a workman could not recover damages at common law if he suffered injury fiom another workman who was employed on common work by the same employer. This rule was often regretted. Lord Atkin, in the House of Lords in 1939, said?

At the present time this doctrine (of common employment) is looked at askance by judges and textbook writers. ‘There are none to praise and very few to love.’ But it is too well established to be overthrown by judicial decision.

Only a vigorous Law Reform Committee can ameliorate the rules that have become hardened by the courts and it is a credit to our system that the harsh doctrine of common employment, together with that other seemingly unjust rule that an injured party could recover nothing if he was himself guilty of any contributory negligence were both frnally abolished by statute.

The difference in attitude between the English view of precedent and the Continental view has been very well expressed by Professor Goodhart when giving his inaugural lecture at Oxford, in the course of which he said?

It may be granted that judge-made law is more practical, being founded on actual cases, than is statute law, which is fiequently based on a priori theories. To this extent it may be said that English law is essentially a practical law, but-and this is most important-this practical nature of En lish law is not based on the doctrine of prece-

there be further experience when the first individual case is binding? It is more correct to say that English law, being largely judge-made law, is practical until the doctrine of recedent comes into force, and thereafter becomes essentially historical.

tested by trial and error; this, however, is not the method ofEnglish law, for, owing to the doctrine of precedent, the first experiment must also be the last. In contrast to this, the Continental practice in fact is based upon experience, for la jurisprudence only becomes fixed if the result of the cases shows that a rule, heretofore tentatively applied, is a desirable one. There is, therefore, room for a certain amount of judicial experimentation which is impossible under the common law.

The Court of Justice at Luxembourg will be motivated by the view of precedent which has prevailed in the Commoii Market countries, and this will be more flexible than ours. There will be many, however, to whom this new approach w d be welcome, and it may well inhse our own domestic courts with the more liberal attitude. As in fact the law becomes more charted by the unending series of decisions that are reported on every conceivable point, there may well be much to be said for a new approach to the problem pf precedent. Greater &eedom in this direction might well give new life to the spirit of the common law.

dent but exists in spite of it. Practical i: aw is law based upon experience, but how can

A system o P law to be truly practical must be one based on a series of experiments,

NEW LAWS FOR OLD? 285

111

The rights of individuals in England as against public authorities have not been as well protected by the law as they might have been. Under our constitutional system, based on the theory that the king can do no wrong and that therefore the Crown cannot be sued at common law, the Crown has always had certain privileges. These privileges existed originally in order to protect the powers of the Sovereign, but now the same rules are invoked in order to shelter and preserve the Government and its officials.

A civil servant has no contract of employment, and all servants of the Crown hold their employment, in theory at any rate, at Her Majesty’s pleasure. In law there is no contract, and therefore the courts can grant no protection to one who is dismissed for any reason &om government service. In fact civil servants have protection in other ways, as, for example, through the Whdey Councils, and, of course, by the essential fairmindedness of those in high places. But when it comes to a matter of the legality of their position, they find themselves without any rights at all. Such is not the position in Continental law, which never grew up on such peculiar historical doctrines. Continental countries recognize a distinction between private law and public law. Private law normally deals with the rights between citizen and citizen, concerning contract, tort and f a d y law, whle public law deals with the law of the constitution and regulates the relationship between the State and the subject. In such cases it recognizes that there is a wider interest in the principlcs applied than merely the interest of the indivi- dual invo1ved.2s The distinction between public and private law may at times be vague, and the principles may tend to become confused in their application, but at any rate there is a very clear distinction in dealing with the rights of persons employed by the State.

As such a principle is generally recognized in the member states of the Community, it has therefore been applied without challenge into the law relating to the employment of officials and other servants by the institutions of the Community. Such was the case of Messrs. Lachmiiller, Peuvrier and Ehrhardt30 who were temporary translators employed by the Commission of the EEC, until they were dismissed by the Commission without any reasons being given to them. The Court of Justice decided that the contracts were subject to public law and not private law and that adrmnistrative law was to be applied. The Court accordingly held that the dismissals must not be arbitrary but must be made in good faith and must be justdied on public grounds, that is to say that the employee was not properly competent or that there was no suitable post for him. The Commission had given no reasons, and this constituted a breach of contract. Although there were

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no special damages, the three plaintiffs were all given handsome damages ‘ex aequo et bono’.

Similar principles were followed in the later case of Madame de Bruyn,S’ who was temporarily employed by the European Parlia- mentary Assembly as a shorthand typist until she was summarily dismissed. In the course of its judgment the Court held?- . . . that the acts of the authority, in the administrative sphere as well as in the con- tractual sphere, were always subject to considerations of the public interest; and that accordingly every dismissal must be founded on reasons based on the interest of the service to the exclusion of any arbitrary reasons. Such a requirement existed from the moment of the creation of legal relations between the administration and its servants.

Such cases indicate the wide divergence between the scrvant of the Crown in English law who is without any legal remedy, and the attitude that is shown to public servants on the Continent.

This consideration for the subject at the hands of the administration is not limited to contracts of employment alone. It extends to many other fields and in particular to the control of the powers of Ministers in interfering with the liberties and rights of the individual. Professor Hamson, in his lectures on the French C o r d d’Etat, declared33 that what was ‘calculated most to shock the French administrative lawyer is the extent to whch the Minister or Department in England still remains judge in his own cause’ and he later makes the following comments :34

It is no doubt possible to suppose-indeed, it may be true-that the administration in England is conducted with a most scrupulous regard for those principles of fair dealing and justice of which, as the principes gbihnux dir droit, the Conseil d’Etut publicly requires and enforces the observance by the French administration. But it is the official profession that it is not possible in England to subject the executive to what is described as the constraint of such principles; and the occasional revelation (here follows a footnote referring to Crichcl Down) of the manner in which Govern- ment business actually is conducted seems to warrant the belief that the observance of such principles would, on some occasions at least, have amounted to a considerable constraint.

Similar principles are applied to the d~scovery of documents in a government department where the decision of the Minister is in question. In England the Crown has a privilege in respect of the discovery of documents. Thus no Minister or official may be ordered to produce documents and memoranda in order to show the principles on which official action was taken. This was very apparent in the recent case involving Dr. Soblen, where the Crown could not be ordered to produce any relevant documents.35 Such is by no means the case in the Conseil &tat, where the courts have called upon

N E W LAWS FOR O L D ? 287

ministries to produce their dossiers,36 and it is also the practice of the Luxembourg court to call upon the institutions of the Community to produce relevant documents, even though the names of the persons assisting at the decision may be ~bliterated.~~

Many d believe that these Coiitinental principles represent an improvement on the privileged position that has always been given to Crown departments under English law.

The foregoing pages are intended to show that our possible entry into the Common Market may bring English lawyers into contact with other systems of law possessing some features which are superior to our own, to which we should be alive and receptive.

1 ‘Interpretation of English and Continental Law’, journal of Comparative Legislation 153. D. G. Valentine, ‘Community Law and English Law’JCMS (Vol. I , No. 2, pp. 180-6). Oxford (1961), p. 412. 1’. 423. R. v. Hertford College (1878), 3 Q.B.D. 693, at p. 707. ‘Some observations on Preparatory Work in the Interpretation of Treaties’ (1935), 48 Harvard

Y.B. Mich 33-35 Edw. I. 82 (Rolls ed. 1305), quoted, with other cases, by H. Lauterpacht,

L.R. 549. ’ Crane v. Hegemann Harris (1939). 1 All E.R. 68.

op. (if. at p. 560. * Maltass v. Maltass (1844), 1 Rob. Ecc. 67. lo (1915) 1 K.B. 857. 11 At p. 876. l2 (1918) 3 Br. & Col. P.C. ‘3Ellerman Lines v. Murray (1931) A.C. 126. l4 At p. 143. l6 See generally, Precedent in English Law (Oxford) by Rupert Cross. lU Quoted by C. G. Moran in The Heralds qfthe Law.

The author is unable to trace this report. l8 (1898) A.C. 375, at 380.

(1962) 2 W.L.R. 186. 2o At p. 192. 21 At p. 197. ?* At p. 208. See also Lord Denning, From Precedetrt to Precederit, Romanes Lecture, 1959

(Oxfordj. 2s Young v. Bristol Aeroplane C o . (1944) K.B. 718. 24 Police Authorityfor Huddersjeld v. Watson (1947) K.B. 842. See A. L. Goodhart in 64 L.Q.R.

40. 25 See A.G. for Ontario v. Canada Temperance Federation (1946) A.C., at p. 206. *a BritishJtstice; The Scottish Contribution by T. B. Smith (Stevens), p. 84. 27 RadcltJie v. Ribble Motor ServicesLtd. (1939) A.C. 215, at p. 223. 28 50 L.Q.R. 40. 2* Colin et Capitant. Traite de Droit Civil. Vol. I, pp. 19 et seq. ao (1960) VI Remil 933. See Campbell and Thompson, Corirmon Market Law, para. 525. 31 (1962) VIII Recrreil 39. 32 At p. 58.

34 Ibid., p. 211. 36 R. v. Soblen, Times Newspaper, August 24, 1962. 3u See Hamson. op. cit., pp. 36 et seq. ni Italian Republic v. High Authority (Case 2/54) (1954) I Recruil, at pp. 103, 104.

C. J. Hamson, Executive Discretion andJudiciaf Control, p. 211.