judge who retired unhurt, The

TAKEN AT THE FLOOD by Patrick Devlin

Taverner Publications, fll, pp. 173

Patrick Devlin was one of the outstanding lawyers of the second half of the century. He was also what lawyers, outstanding or otherwise, rarely are: an excellent writer of English. This ability may have derived from his Irish ancestry, though he was born the son of an unsuccessful architect in Chislehurst, was brought up in Aberdeen and went to school at Stonyhurst before going up to Christ's, Cambridge. As with Lord Radcliffe, a more etiolated character whom he nevertheless resembled in several ways, the law was never the whole of his life. Like other successful lawyers - Lords Birkenhead and Shawcross and, more recently, Lord Alexander - in middle age he became bored with it. The House of Lords in its judicial capacity, he used to say, was chiefly about income tax. Having been made a High Court judge at 42, a Lord Justice of Appeal at 45 and a Law Lord a year later, he retired from his legal duties in the Upper House at the early age of 58, as soon as he had qualified for a pension. When asked on television what he intended to do with the rest of his life, he replied, `Enjoy myself.'

In legal circles this was felt to be not quite playing the game. Though Lord Denning had already retreated from the Lords to the Court of Appeal as Master of the Rolls because he could not bear to be contradicted by his colleagues (a path which Lord Woolf was to follow later, even if for different reasons), judges then as now were expected to devote their declining years to the practical service of the law. Instead Devlin became the first 'lay' chairman of the Press Council, that is, the first chairman from outside the industry. I look forward to the day when a leading journalist becomes chairman of the Bar Council. Some hope! Still, Devlin performed his duties to general satisfaction. He also made a lot of money out of being an arbitrator. And he wrote some good books.

It was one of these, Easing the Passing, that led to further tut-tutting in the Temple about Pat Devlin. This was an account of the acquittal of Dr John Bodkin Adams of Eastbourne. It is one of the best books ever written about a trial. This is not altogether surprising, because Devlin was the judge. I suspect, however, that what annoyed assorted silks and benchers was not so much that he had breached convention (if, indeed, he had) in writing about a trial over which he had presided as that he was, in the course of the work, rude about the prosecuting counsel, Sir Reginald Manningham-Buller, the Attorney-General, later Lord Dilhorne, the Lord Chancellor. He referred to him disrespectfully throughout as 'Reggie' and cast persistent doubt on both his intelligence and his application. The latter charge, at least, was unfair. For Reggie was to do the reverse of what Devlin had done. Having served his brief term on the Woolsack and been succeeded by Labour's Gerald Gardiner, he put his head down, read a few books and some law reports, and turned himself into a thoroughly competent Lord of Appeal.

Nor were Pat's motives for being so scornful of Reggie of the purest. He admits as much in the book. Lord Goddard, one of his mentors, wanted Devlin to succeed him at some time as Lord Chief Justice. So, at one stage, did Devlin. Somewhere, somehow, Reggie got himself in the way of this plot. As Reggie never became LCJ anyway, and the notion that the Attorney has a reversion on the job is a constitutional myth, Devlin's account does not make complete sense. But there it is.

There was another reason why Devlin was viewed with some suspicion in circles that were in both senses conservative. It lay in his chairmanship of the Nyasaland Commission in 1959. It is difficult to recall now the importance which Africa assumed in the Conservative party even up to 1980, when Lady Thatcher finally handed Southern Rhodesia over to the most recent despot. In the 1950s and the 1960s the dark continent had occupied much the same position as Europe does today. In his report Devlin described Nyasaland as 'a police state'. Naturally this did not please the Conservative government of the day.

Accordingly there was a tendency to view Devlin as a 'liberal' judge. This was erroneous. Certainly he thought perverse juries were valuable guardians of our liberties. But one of his best books was The Enforcement of Morals. It was the result of a controversy with H. L. A. Hart, the Professor of Jurisprudence at Oxford. Hart maintained that the law had no business concerning itself with matters of private morality. Devlin replied that whether it was the law's business or not - and he thought that sometimes it might be - the law was clearly engaging in it all the time. He produced numerous examples to illustrate his case. Hart then made what Edgar Lustgarten used to call his fatal error. He wrote that many of the examples which Devlin had cited were not of interference in private morality as such but of justifiable paternalism by the state. Exactly so, said Devlin. One man's paternalism was another man's interference in private morality: forcing someone to do or, more usually, to refrain from doing something because the state thought it was for that person's own good. It was not a question of legal theory but of where you stood politically.

Politically Devlin was not a collectivist or even a liberal but a Conservative. The chief influence in his life was the Cambridge Union, where he excelled. This is a body which is much mocked in some quarters but provides or, at any rate, provided unprivileged undergraduates (except to the extent that all undergraduates are privileged) with the opportunity of meeting the great, the rich or the famous. That, of course, is the reason why it is made fun of. Devlin's first mentor was Sir Geoffrey Butler, Cambridge Conservative historian and uncle of Rab, who also became a close friend. His second mentor was Sir William Jowitt, Attorney-General in Ramsay Macdonald's 1929 government and Lord Chancellor after 1945. In this uncompleted autobiography, an account of his early life at the bar, Devlin is frank about the importance of connections and of luck, of knowing the right people at the right time.

Devlin is also frank about money: the importance of having it, making it or being able to lay one's hands on it. Though his father was impecunious, his mother was a Crombie, of overcoat fame. He duly married an Oppenheimer. She and other members of the family have edited this fascinating autobiography, which takes us to 1941. The writing is of high quality, but it is an amateur production in the best sense. And it is a sad commentary on the state of commercial publishing today that the book was not brought out by one of Devlin's several former publishers.

Copyright Spectator Apr 12, 1997
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