Ashes and Sparks: Essays On Law and Justice by Stephen Sedley

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Ashes and Sparks: Essays On Law and Justice by Stephen Sedley

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Category: Politics and Society
Rating: 4.5/5
Reviewer: Lesley Mason
Reviewed by Lesley Mason
Summary: Wide-ranging compilation of essays, lectures and book reviews covering the whole gamut of English legal process enlightened by views from elsewhere around the world. Not the lightest of reads, but worth the effort.
Buy? Yes Borrow? Maybe not
Pages: 446 Date: February 2011
Publisher: Cambridge University Press
ISBN: 978-0521170901

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Some books are hard to read, and even harder to review. This is particularly true of what are essentially academic or "professional" books and you come to them as a lay reader. This then is my starting position on Ashes and Sparks.

Stephen Sedley was called to the Bar in 1964 (when I was two years old) and is now, more properly, the Right Honourable Lord Justice Sedley, a judge of the Court of Appeal of England and Wales. He is an honorary Professor of Law at Warwick University and the University of Wales at Cardiff, and a Judicial Visitor at University College, London. He has sat as a judge in the European Court of Human Rights and on the Judicial Committee of the Privy Council. Since 1999 he has been president of the British Institute of Human Rights. Prior to his elevation he was involved in many high-profile cases of the day, including the death of Blair Peach and the Bridgewater Four appeal, not to mention the contempt hearing against a serving Home Secretary (Kenneth Baker).

He has written and lectured widely throughout his career both as a barrister and as a judge (although by his own word in the latter service he was constrained to be less overtly party-political).

I, on the other hand, have always had an interest in the law but my formal training is limited to the module contributing to the RSA PA Diploma back in 1986, an A-level studied and taken "for fun" in '93, and subsequent concentration by way of seminars, workshops and reading of the primary legislation on the Acts and Regulations directly affecting Housing Associations in the course of the day job.

I am – at a stretch – an educated and interested lay person. Also, as I found out in the reading of the book, I seemed to have been legally asleep for a significant time at the beginning of this century having somehow completely missed the abolition of the Lord Chancellor and formation of the Supreme Court. I knew we had one. But every time it came up in the news just recently, I found myself thinking "what's that?" "when did that happen?" - about six years ago, while I was off fretting about matters closer to home is the answer.

Given this evident discrepancy in original understanding between myself and the author, this was never going to be an easy book, and I freely admit to having struggled in places. It is, however, an intensely interesting one and one that can be enjoyed by the layman, if approached in the right way.

That way, I shortly discovered, was to simply skip over the bits you didn't get – or where you cared enough, re-read them until you did get them.

Additionally, just accept that you have never heard of the majority of the cases referred to and (be honest) you just don't have the time to go look them up.

The book is a collection of essays, lectures, book reviews and other writings. Although many of them originally appeared in the London Review of Books, many were also delivered to highly select legal audiences. The writing is aimed at the professionals.

The commendations on the cover are from a former Senior Law Lord, a Nobel Laureate, a former Judge of the Constitutional Court of South Africa and the Chief Justice of Canada. Ian McEwan is the sole voice of the general reader – and his five words are easily lost in the profuse praise of the peers.

Those five words are accurate though. McEwan describes the collection as "Elegant, witty, sane and accessible." I would second all of that.

Structurally the book is divided into three sections entitled History, Law, and Justice. Whilst the first of these makes sense as a stand-alone, the other two can't help but tread on each other's toes. It isn't possible to examine aspects of law without commenting on the justice (or otherwise) resulting. Similarly, the essays on justice are naturally framed in the context of the law's endeavours to provide it.

I'm not sure that I agree with Sedley's decision not to assemble the pieces chronologically. For those of us less familiar with the process of legislative development over the last twenty to thirty years a more time-line approach would have avoided some of the inevitable confusion that results from skipping about.

He does try to balance this by introducing each chapter with a paragraph putting the piece in context and, on occasion, but perhaps not often- or at-length-enough for my needs, commenting on changes which have occurred since.

The range of issues covered is broad enough to entertain anyone with a passing interest in our legal system and its outcomes.

A random selection of areas covered would include the Nuremberg trials, the Pinochet case (both here in the UK and at home in Chile), the independence of the judiciary and the interference of Parliament (and vice versa), PACE, the value and limitations of adversarial v. investigatory trials, whether Britain already has a constitution (yes) and whether we need a written one (no), the European Convention on Human Rights and its enactment into English law (visited from a position of cynical scepticism, then revisited as a convert to the cause), problems of interpretation – does a statute mean what the courts say it means, or what Parliament intended it to mean, and if the latter how can you possibly know what that was? – the curses and benefits of "the Public Inquiry", censorship, the separation of powers (and where exactly does that leave the Crown? Can you have a case of Regina v. Regina? where one is the Court and the other is Parliament?), freedom of information and the right to knowledge, free speech and limitations on incitement, privacy, the taxi-rank rule, rights and limitations of appeal, when is personal liability in the interests of society and when not (consider Doctors who can be sued, and Social Workers who cannot)… just for starters.

Cases mentioned in passing include all the high-profile ones you'd care to name, but also a raft of those you've never heard of. A self-confessed lover of the footnote, Sedley uses them to succinct effect. For the law student, I've no doubt they're invaluable. For the general reader, a small proportion elucidate the narrative, most are case references that you will find meaningless.

Coming back to McEwan's assessment as a useful tool for summing up the book…

Elegant? Of course. How could a lawyer, whose very livelihood is the manipulation of words, much less one who has made a second career of sharing his erudition with the world at large, not produce eminently readable prose? Even when you're not entirely sure what he means, the words flow with an audible resonance. You can imagine them being spoken.

Witty? Oh yes! It was Dickens' Mr Bumble who asserted that "the law is a ass… a idiot" – but there are times when one simply must agree. Sedley's text is littered with examples of the absurd, the inane, the correct but still humourous…

… in talking about the difficulties of precise drafting of statutes he quotes the legendary Nuts (Unground) (Other than Groundnuts) (Amendment) Order, which may indeed be apocryphal or a figment of Sir Humphrey Appleby's imagination but whose circumstantial provenance is amply supported by modern legislation (check out recent Statutory Instruments on the Legislation website if you don't believe me).

…referencing a case against his namesake Sir Charles Sedley fined in 1663 for offending against public morals "there was something more in that case than shewing his naked body in the balcony; for the case was quod vi et armis he pissed down upon the people's heads."

… or in looking at problems of interpretation "Only recently a judge has had to reassure the world that a prison rule allowing inmates to be penalised for using 'improper language' would not allow the governor to award solitary confinement for splitting an infinitve."

Sane? Again yes. Sedley is always sure of his ground, which often means being unsure of an uncertain footing. He is a surprisingly humble writer, happy to bring together in this single volume pieces which show how his own views have changed. He acknowledges that some of this is simple maturity, the wisdom coming with age, but doesn't shy away from the fact that becoming a judge gave him a perspective he would never have achieved had he remained on the other side of the Bar arguing cases rather than adjudicating them. Most of the arguments come down upon a firm recommendation for action or interpretation, but none of them do so without examining both sides of the argument and presenting rational and pragmatic reasons for the proposal. Am I biased, because I tended to agree with most of his standpoints – or just too ignorant to really judge and thus swayed by his persuasive style? Who knows?

And accessible? That's the limiter. If you're interested in the law, then you're probably familiar with its strictures of language. You do need to be able to follow rambling sentence structures and have a decent subject-area vocabulary. Without these you'd find the work heavy going indeed. But without them, I cannot imagine that you have the basic tools to begin to enquire into the workings of our legal systems.

For the general reader, equipped with the appropriate mindset – and I don't claim that it is anything more than a particular aptitude, unrelated to intelligence or some such – then the book is worth the effort. Some of the more academic lectures left me out in the cold, but on the whole, I have learned a lot from having read it, and enjoyed some sections of it immensely.

It's a keeper, a re-reader, and within the limits of a changing world, a decent starting point reference book.

I'd like to thank the publishers for sending a copy to The Bookbag.

Further reading suggestion: for a different angle on the way Britain is run take a look at A Very British Revolution: The Expenses Scandal and How to Save Our Democracy by Martin Bell.

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