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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 |
