The Indirect Influence of Politics on Tort Liability of Public Authorities in English Law

Date01 March 2013
DOIhttp://doi.org/10.1111/lasr.12005
Published date01 March 2013
The Indirect Influence of Politics on Tort Liability
of Public Authorities in English Law
Dan Priel
The scope of negligence liability of public authorities in English law has
undergone significant changes in the Post-World War II period, first expand-
ing and then, from the mid-1980s, retracting. This article tries to explain why
this happened not by focusing, as is common in most commentary on this area
of law, on changing doctrinal “tests,” but rather by tying it to changes in the
background political ideology. My main contention is that political change has
brought about a change in the law, but that it did so by affecting the scope of
the political domain, and by implication, also the scope of the legal one. More
specifically, I arguethat Britain’s Post-War consensus on the welfare state has
enabled the courts to expand state liability in accordance with emerging
notions of the welfare state without seeming to take the law into controversial
territory. When Thatcher came to power, the welfare state was no longer in
consensus, thus making further development of legal doctrines on welfarist
lines appear politically contentious. The courts therefore reverted back to
older doctrines that seemed less politically charged in the new political atmo-
sphere of the 1980s.
In debates on the relationship between politics and law, two
extreme views tend to occupy much of the discussion. At one end of
the spectrum we see the view that law is simply a masquerade for
politics. On this view, doctrinal analyses we find in judicial opinions
are mere cover for what is really going on, namely politics. At the
other extreme are those who think of law in political terms is to
misunderstand what this law is all about (among others: Beever
2007:171–72; Oakeshott 1975:412; Stevens 2007:311).
The former approach has been very influential in analysis of the
work of American courts, in particular the Supreme Court. Following
on the footsteps of the legal realists who have argued that the legal
considerations found in judicial decisions often fail to explain the
actual motivation behind the decisions, many scholars of American
I thank the editors and anonymous referees of the Law & Society Review for very
instructive comments. I also thank my former colleagues at the University of Warwick
School of Law and participants in a panel of the Law & Society Association annual meeting
in June 2012 (and especially Yoav Dotan, who chaired the panel) for their comments on
earlier versions of this article. Please direct all correspondence to Dan Priel, Osgoode Hall
Law School, Ignat Kaneff Building, York University, 4700 Keele Street, Toronto, ON,
Canada M3J 1P3; e-mail: dpriel@osgoode.yorku.ca.
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Law & Society Review, Volume 47, Number 1 (2013)
© 2013 Law and Society Association. All rights reserved.
courts have argued that the judges’ politics provide the best explana-
tion of judicial opinions. Thus, according to two leading proponents
of this view,“[s]imply put, Rehnquist votes the way he does because he
is extremely conservative; Marshall voted the way he did because he is
extremely liberal” (Segal & Spaeth 2002:86).
This view is by no means universally accepted, but whatever its
merits may be in explaining the United States Supreme Court, it is
not clear how applicable it is to the analysis of other courts, espe-
cially those outside the U.S. American courts have long been
unique in the degree to which they participate in the shaping of
policy on politically divisive issues. In England, where legal realism
has never had as much impact as it had in the United States
(Duxbury 2005:54–69), the alternative, legalist, explanation still
largely prevails. Accordingly, the legal reasons found in judicial
opinions are still typically treated as the most reliable source for
explaining the outcomes of cases and are closely analyzed by legal
commentators. This scholarly difference reflects, I believe, an
underlying difference in legal and political traditions.
While there have been some efforts to argue that English courts
are influenced by political considerations (e.g., Griffith 1997;
Robertson 1998), they have been few and far between, and even
they have resulted in considerable criticism (e.g., Lee 1988:33–39;
Minogue 1978; both directed at Griffith). Even these rare studies
focused more on public law, leaving the area of private law mostly
to doctrinal scholarship, which is still the dominant form of schol-
arship among English private lawyers. The question whether and
how political ideology affects these areas of law was either unexam-
ined,1or explicitly denied (Stevens 2009:651–52).
A full explanation for this difference is beyond the scope of this
article, but I suspect it has to do with the different political tradi-
tions of the two countries. In England, the doctrine of Parliamen-
tary supremacy was understood to imply that political questions are
the domain of Parliament (Tomkins 2005), and as a result courts,
including the House of Lords (until recently the highest court
for civil cases from all the United Kingdom), have shied away
from involvement in politically controversial matters (Atiyah &
Summers 1987:267–68).2It is, I believe, in large part for this reason
1For instance, in 1989 special issue of the Journal of Law Society dedicated to “Thatch-
er’s Law,” the topics considered included privatization, education policy, housing, but not
one of the papers discussed private law. The same is true of Zellick’s (1989) survey of
Thatcher’s influence on law.
2It must be this view about the relative independence of law and politics that explains
why it is not just academic lawyers but British political scientists who have also shown
relatively little interest in the work of the courts (as attested in Drewry 2009). The stands in
stark contrast to the situation in the United States where much of the work examining the
political orientation of judges has been conducted by political scientists.
170 Politics in English Tort Law

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