Justiciability – A Forgotten Saga

The Breastplate, used and worn by the Head Porter

being attached to an Inn of Court: Gray’s had Staple and Barnard’s Inns, Lincoln’s had Thavie’s and Furnival’s and Inner Temple had Clifford’s, Clement’s and Lyon’s. Middle Temple originally had Strand and St George’s Inns. The Strand Inn may also have been referred to as Chester Inn as the premises were close by the London house of the Bishop of Chester. However, in the 16 th Century, those premises, which were situated near the church of St Mary le Strand (the church still in the Strand, now opposite the main entrance to King’s College), were taken and demolished to allow for the erection of Somerset House. At about the same time the students of St George’s Inn joined their fellows from Strand Inn, because their buildings were falling into disrepair and, at the eastern end of Fleet Street, were some distance from Middle Temple. The students removed to (the then aptly named) New Inn which was established immediately to the west of Clement’s Inn in the premises of a hostelry or ‘common Inn’ which had operated under the sign of the Virgin Mary as ‘Our Lady Inn’. The site of Clement’s Inn is immediately to the west of the Royal Courts of Justice and, although nothing remains of the original buildings of either of these Inns, the buildings now there, many occupied by the London School of Economics and Political Science, retain the name Clement’s Inn.

In the 17 th Century the Inns of Court started excluding lawyers who were not to practise or who were not practising at the Bar. Thus, solicitors and attorneys became the sole members of the Inns of Chancery, although it is evident that some connections between the Inns of Court and their Inns of Chancery continued until the latter were finally dissolved in the late 19 th or very early in the 20 th Century. All that remain of most of them are their names attached to more modern buildings or groups of buildings (as Clement’s Inn above), although much of the original premises of Staple Inn has survived and is still in use by the Institute and Faculty of Actuaries. So, as an establishment which originally prepared students for admission to the Inn, these badges came into the Inn’s collection upon the demise of the New Inn.

The Breastplate and the Staves All members of Middle Temple will have seen and be familiar with at least one staff and the breastplate used and worn by the Head Porter when he leads the procession of Benchers and guests at formal dinners in Hall. The silver breastplate bears the coat of arms of the Inn displayed in a garland of flowers and acanthus leaves. It is engraved on the reverse with ‘The Messenger to the Hono.ble Society of Ye Midle Temple’ and with the letter ‘T’ above the initials ‘HC’ for Master Henry Chauncy, who was Treasurer in 1685/6. It bears the hall mark for 1686.

The three staves are, first and grandest the Inn’s Temple Church Staff. At its head is a Lamb and Flag cast in silver as the finial mounted on a silver pommel and collar, which is hallmarked for 1684. The shaft of the staff is lignum vitae – said to be the densest wood of all. In procession in the Temple Church it is born by the Head Porter alongside his Inner Temple counterpart bearing that Inn’s Church Staff; this is dated to about 1705, fashioned from bamboo with a handsome silver finial mounted with the Pegasus of the Inner Temple. The second staff is the Head Porter’s made of ebony with a silver finial engraved on the top with the Lamb and Flag. It is also engraved, on the upper section, with the date 1733 with a ‘T’ above ‘CW’, although the staff is thought to be earlier, there being no hallmark to verify a date of its making. It is also engraved with the words: ‘This Staff Belongs To Ye Honble Society Of Ye Middle Temple’. It has a brass ferule at its foot. The third staff is the Under Porter’s. The silver finial is engraved on the top with the Lamb and Flag and, on the upper section, similarly to the Head Porter’s but with the date 1755 and the cipher for the Treasurer of that year, Master Benjamin Smart – ‘T’ above ‘BS’. The shaft is made of elm and is thought to be a 19 th Century replacement of the 18 th Century original. It too has a brass ferule.

The brass ferules on the feet of the Head and Under Porters’ staves have had to be sturdy. They have had to withstand the three loud and measured blows on the floor (as have the oak floorboards) administered by their bearers in order to announce to the members of Hall that the processions to and from the High Table are about to start. It is curious that those three measured blows are the same as are used elsewhere; most curiously in the mind of the writer as those given at La Comédie Française to announce the raising of the curtain and the start of the performance. But research as to any link between the two will have to await another day. Amongst so many other much more important things in the Inn, one effect of Covid-19 has been the delay in the completion of the display cabinets for a rotating display of items from the Inn’s silver collection. The cabinets have been installed in the vestibule outside Master Treasurer’s room, but final insurance inspection, internal finishes and the finalising of the first items to be displayed have yet to be completed. It is to be hoped that this may be achieved by the end of the year.

Master David Blunt had an extensive and wide-ranging national and international civil practice with particular expertise in construction and engineering, information technology, and professional negligence. He served as Chairman of the Inn’s Students’ & Barristers’ Affairs Committee from 2007-2012 and was the Chairman of the Burton Pupillage Information Committee, established in 2012.

The Supreme Court`s decision in R (on the application of Miller) v The Prime Minister [2019] UKSC 41, that the Prime Minister`s advice to the Queen in August 2019 that Parliament should be prorogued, gave rise to some controversy. Amongst other criticisms, a number of commentators expressed the view that the court`s conclusion in relation to the justiciability of the issue was ‘novel’ or ‘surprising’. Some politicians stated that it was simply wrong, and it appears that perception is fuelling suggestions that the government might legislate to limit the powers of the courts.

In my view, the ruling on this issue was neither novel or surprising, as is illustrated by the now forgotten case of R v the Home Secretary ex parte McWhirter (The Times, Tuesday 21 October 1969), which concerned proposed changes to constituency boundaries thought to favour the Opposition (the Tories) by between ten to 20 seats. Needless to say, this was an extremely hot political potato at the time.

The proposed changes were recommended in a 1967 report of the Boundary Commission for England. Section 2(5) of the House of Commons (Redistribution of Seats) Act 1949 provided:

As soon as may be after a Boundary Commission have submitted a report to the Secretary of State under this Act, he shall lay the report before Parliament together …with the draft of an Order in Council for giving effect, whether with or without modifications, to the recommendations contained in the report.

When, by June 1968, the report had not been laid before Parliament, Quinton Hogg MP tabled a Motion in the House of Commons calling on the UK Home Secretary James Callaghan to implement the recommendations in the report. The Wilson government used its majority to ensure that the Motion was rejected. A Mr McWhirter then applied to the Divisional Court for an order of mandamus requiring Mr Callaghan to lay the report before Parliament. I was one of the Government`s legal team instructed to oppose the application.

…in later life Mr Callaghan was ashamed of this incident – which his official biographer described as ‘a simple gerrymandering exercise by the Labour Government’.

In spite of the highly political nature of its subject matter, the Government did not contend that the application was not ‘justiciable’, though other points were taken. In the event the Court was informed that the Home Secretary did intend to lay the report before Parliament, counsel for Mr McWhirter asked for costs in Mr McWhirter`s favour, and Lord Chief Justice Parker expressed reluctance to devote a day and a half to the issue of costs. The court adjourned briefly, Mr McWhirter agreed to withdraw his application and the Government agreed to make an ex gratia payment to him – its purpose and amount being unspecified. This brought the legal proceedings to an end.

The fact that no justiciability point was taken by the Government might be dismissed on the basis of my lack of learning and inexperience (I had been Called to the Bar less than two years before) had I been alone, but the whole team consisted of the Attorney General Sir Elwyn Jones QC, a veteran politician, the Treasury Junior Gordon Slynn, later Advocate General to the European Courts of Justice and a judge of the High Court, the Court of Appeal, and the House of Lords, and John Bailey, later the Treasury Solicitor.

Mr Callaghan did lay the report before Parliament, together with a draft of the prescribed Order in Council, and then, following a debate (HC Deb 12 November 1969 vol 791 cc 428 – 555), used the Government`s majority to reject the Order. It has been said that in later life Mr Callaghan was ashamed of this incident – which his official biographer described as ‘a simple gerrymandering exercise by the Labour Government’.

I do not recall any academics or other commentators suggesting at that time that Mr McWhirter`s application was not justiciable. Likewise, no one suggested that the courts could interfere with the ‘proceedings’ in Parliament. The points taken reflected the general understanding, held at that time by lawyers and parliamentarians alike, as to the boundary between the courts and Parliament – established in the constitutional settlement substantially concluded by the end of the 17th Century. I know of nothing which has occurred since 1969 to call in to question what was then the received view.

On a personal level, the case was a quite a dizzying experience – being in a room with the Attorney General on the telephone to the Prime Minister, and, at that age, being asked my opinion as to the likely outcome of the pending application. It is one of the excitements of the Bar that there is always the chance of being catapulted into a case of unexpected interest and significance, even at a young age.