On 4 March 2016, Sir Stephen Sedley delivered the 2016 Sir David Williams Lecture at the Faculty of Law in Cambridge. Sedley took as his title ‘The Lion Beneath the Throne: Law as History’. The arguments he advanced were subtle and wide-ranging, and cannot be done justice in a short post. A key aspect of the position adopted in the lecture, however, is that law can, and sometimes does, generate its own version of history by dint of the ways in which the professional legal community curates legal doctrine.
Of particular interest to administrative lawyers will be the fact that Sedley sought to illustrate his argument by reference, among other things, to the way in which the law concerning the distinction between jurisdictional and non-jurisdictional error of law has developed. Sedley observed that the distinction had traditionally been a feature of English administrative law, but that the House of Lords’ decision in Anisminic Ltd v Foreign Compensation Commission  2 AC 147 can—in retrospect—be seen to have marked the demise of that distinction. Sedley’s key argument, however, was that the groundbreaking status that history has ascribed to the Anisminic case accrues only because of the way in which the legal community responded to it, thereby illustrating the way in which that community is capable of shaping the development of legal doctrine and thus influencing the extent to which a given case might come to be perceived as having engendered a paradigm shift.
Against this background, Sedley argued that while Anisminic did not in terms abolish the distinction between jurisdictional and non-jurisdictional errors of law, it came to be accepted as having done away with that distinction because of the emergence of a professional consensus that extended to Treasury counsel themselves. Their omission to press arguments that would have turned upon the maintenance of a category of intra-jurisdictional errors of law, said Sedley, played an instrumental role in the subsequent emergence of the general principle that all errors of law result in an excess of jurisdiction. Sedley described this as a ‘collaborative’ if not ‘collusive process of reconfiguring public law’. This account of the development of modern administrative law was advanced by Sedley not pejoratively, but way of advancing his thesis that law can, and does, develop through an ‘organic process’ whereby the law’s ‘practitioners and exponents agree on the direction in which the law should be travelling’, such a phenomenon being an instance of Sedley’s thesis that law can be generative of its own history. On this view, the doctrinal import of any given case may be difficult to discern until, some time later, the legal community has contributed to the writing of the history of which the case might (or might not) come to form a part.
Sir Stephen Sedley’s lecture is well worth watching in full. It can be viewed below or via this link.