Judgment was given in the famous Wednesbury case 75 years ago today, on 10th November 1947. Readers of this blog know full well the facts of the case, the judgment of Lord Greene (reported  1 KB 223), the mythical status of ‘Wednesbury unreasonableness’ and critiques thereof, such as Lord (previously Sir Robin) Cooke’s dislike of what he saw as Lord Greene’s circumlocution, a ‘retrogressive’ decision and the unnecessary use of ‘the geographical epithet’ of Wednesbury.
Contrary to that view, however, there is more to consider on this anniversary about the place of Wednesbury and the person of Lord Greene. The study of law is all the more enjoyable if you know something about what has happened to the place in which any case was set and if you know something about the characters of those involved, from the parties to the counsel to the judges.
Since joining Aston University this autumn, I have the advantage of working only a few miles away from Wednesbury. Well before this, I enjoyed seeing motorway signs to Wednesbury and occasionally diverting to check on the cinema’s condition during and after its bingo hall years. Before lockdown, the building’s fortunes were looking up, given its purchase by the small, committed, independent Picturedrome cinema group with plans to bring it back into service. A fire, some vandalism and a pandemic later, there is still optimism, as you can see from that group’s website, which promises in the time-honoured fashion of cinemas that news is ‘coming soon’, while the Cinema Theatre Association has succeeded in having the building included in the local conservation area.
The good news is that you can hear what it was like to be an usherette at that very cinema, the Gaumont in Wednesbury, in that very decade of the 1940s, by listening to the We Are Wednesbury website, where Violet Heywood (née Silwood) explains that one of her tasks was to deal with punch-ups, bearing in mind that the Gaumont was ‘the posh one’ of the town’s three cinemas. You can also hear what it was like to meet your future spouse for the first time in that cinema when you were 15 years old and then serve as a councillor for a Wednesbury ward in what is now Sandwell council. As Ian Bott, a local historian, explains, ‘The Gaumont was very important not only as a business but as a place where people would meet one another, maybe romances, marriages and families started at the Gaumont.’ For those who are not readers of the local press here, that same councillor, Elaine Costigan,
announced last month that she is not seeking re-election for Wednesbury North next May, retiring after 21 years on Sandwell council. She was originally a Conservative councillor but then switched to Labour when the Secretary of State for Education, Michael Gove, performed a U-turn on the funding of new schools in 2010. Also this October, Labour retained their Wednesbury South seat in a by-election caused by the suspension and then resignation of one of their councillors, on a 16% turnout. Most poignantly, last month the council made a licensing decision that was so reasonable no reasonable commentator could object, even though it was an outright rejection of the application. This was for a Wednesbury pub to regain its licence after a series of punch-ups and other incidents, which had seen the police attend 26 times in the 12 months before the licence had been revoked this summer. The licensing committee was not convinced that the effective running of the business would be any different.
Meanwhile Lord Greene is in danger of being regarded as someone who should have sharpened up his language, cut out the repetition in his judgment, abandoned any implication that there could be degrees of unreasonableness, and been much less deferential and more courageous in reviewing the local council’s decision.
Although physical and jurisprudential courage are not quite the same thing, Lord Greene’s Military Cross in the First World War suggests that he was not one to shirk his duty. Even in the Second World War, a brief absence from his day job as Master of the Rolls has recently been explained as having been caused by undertaking a hazardous crossing of the Atlantic to give a speech credited with helping to bring the USA into the war. So I think he would have been brave enough to have stood up to sabbatarian Wednesbury councillors had he thought that was appropriate.
Nor was Lord Greene as foolish as the impression given by those who think they would have given a much better judgment in 1947. He was one of two Prize Fellows of All Souls’ College, Oxford, sitting in Wednesbury. Both he and Lord Justice Somervell had been appointed directly to the Court of Appeal, without having served as judges at first instance.
Some are aware of that influential wartime speech of his on the 250th anniversary of the Supreme Court of New York or his Holdsworth address at the University of Birmingham during his Presidential year (1937-8), but two other talks by Lord Greene are instructive. First, his Haldane Memorial Lecture at Birkbeck in 1944, Law and Progress, sets out the orthodox view of the constitution in exemplary fashion and is ahead of its time on a number of points. For example, he is unequivocal in condemning ouster clauses as ‘a vicious type of provision and Parliament in assenting to it seems to me to have been unmindful of its proper functions since, in effect, the minister concerned is empowered to exceed what Parliament has prescribed as the limits of his jurisdiction. Let us hope that we have seen the end of this monstrosity. If it raises its head again it should be attacked and destroyed by all who value liberty and the rule of law’.
Lord Greene’s best lecture, however, is his Presidential Address to the Classical Association in 1947, the year of Wednesbury, arguing that science is not their enemy but their friend, and that the humanities and the sciences need to be kept in balance. This foreshadows the argument in the following decade of C P Snow’s lecture on the Two Cultures and the Scientific Revolution. Lord Greene’s title was Classics and the Social Revolution of Our Time. His lecture remains relevant 75 years on, and not only as a corrective to any unfortunate impression of graduates in classics given by one of this year’s Prime Ministers, Boris Johnson. Lord Greene disliked the question, ‘Do you keep up your classics?’ This was often ‘asked as though no profit from a classical education was retained in after life other than the power to read and enjoy Greek and Latin.’ On the contrary, the humanities make a difference because, ‘The sight of a great picture or a fine building, the grandeur of a symphony may sink into our minds and the exact memory of them be forgotten; but we are the richer for having seen or heard them’.
Classics and the wider humanities (in which I include Law) develop ‘Integrity of mind, and the habit of following the argument wherever it may lead; accuracy of thought and expression and the impulse to reject what is slovenly or superficial; distrust of the catchword and all undue simplifications; the habit and method of reasoned criticism which forbids us to accept or reject a proposition merely because it is pleasant to do so or because it save us the trouble of thought; the power to recognize and enjoy beauty in all its forms … sublimity of language … sublimity of thought’ and especially balance or wholeness or equilibrium, drawing on the genius of science which, ‘if it is to be true to itself must possess integrity of mind; it must follow the argument; its thought must be accurate; its approach critical; its language precise; it must shun superficiality as the lie in the soul’. His lists of the true value of the humanities and the sciences are so similar that he asks, well ahead of C P Snow, ‘is it not about time that we stopped quarrelling?’
Given his emphasis on precise language, I believe Lord Greene crafted and reiterated that striking phrase, ‘so unreasonable that no reasonable body could ever have come to it …’, deliberately to make his point memorable, and went over the same ground, in judgments and lectures, as a rhetorical device. On anniversaries, we may regard ourselves as having a licence, without any restrictions, to reflect on and rejoice in significant places, texts and characters. The town of Wednesbury, the Gaumont cinema, the 1947 judgment and Lord Greene all deserve to be in Law’s pantheon.
Simon Lee, Professor of Law & Director of Research, Aston Law School
(Suggested citation: S. Lee, ‘Wednesbury’s 75th Anniversary’, U.K. Const. L. Blog (10th November 2022) (available at https://ukconstitutionallaw.org/))