Sir William Wade: A Tribute
by Arvind P. Datar*
Cite as : (2004) 5 SCC (Jour) 1
Professor Sir William Wade died at Cambridge on 12-3-2004. Without question, he was the most respected scholar on administrative law. After Lord Denning, Indian courts have probably referred more often to Wade than to any other English judge or scholar.
Sir William Wade was born on 16-1-1918 and completed his education at Shrewsbury and Gonville and Caius College, Cambridge. He started his career not as a barrister or a lawyer but as a temporary civil servant and worked in the Treasury from 1940 to 1946. His brilliant coauthor, Dr Christopher Forsyth, is of the view that this stint gave him an understanding of the mind of a civil servant.
Wade is known throughout the Commonwealth for his outstanding book on Administrative Law. However, he first wrote a book on the Law of Real Property with the Rt. Hon. Sir Robert Megarry. This book has also become a classic and is now in its 7th Edition. However, very few lawyers in India know about this book.
To thousands of lawyers in India, Wade is known and respected for his Administrative Law which is now in the 8th Edition. The 9th Edition was under preparation and Wade worked on it almost until the very last. The book is remarkable not only for its scholarship but for its brilliant writing style particularly its subtle but effective criticism. Lord Denning is said to have kept a copy of Administrative Law by his bedside! The 8th Edition was dedicated to late Master of the Rolls with this inscription:
This edition is dedicated to the memory of lord denning who died in 1999 aged 100 A great judge, an architect of administrative law and a friend of this book.
It would be no exaggeration to state that the development of administrative law after the Second World War was substantially due to the writings of Wade. Apart from his magnum opus, he wrote several articles in the Law Quarterly Review, Modern Law Review and other journals, besides delivering several lectures on the subject.
Before and during the Second World War, the executive had virtually unchecked power and courts were most reluctant to subject executive decisions to judicial review. The historic Liversidge case1 comes to mind. The House of Lords was concerned with the meaning and effect of Emergency Regulation 18B, which gave the wartime Home Secretary extraordinary power to detain any person without any trial or charge. Liversidge was detained and the order gave no ground on which it was made. The Attorney General argued that the order was executive in nature and could not be called in question in a court of law. The majority agreed but Lord Atkin dissented and argued that the regulation did not give uncontrolled power of imprisonment to the Home Secretary.
The powerful dissent of Lord Atkin must rank as one of the most classic pieces of legal literature. A part of this dissent deserves to be reproduced: (All ER p. 361 C-E)
In this country, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case, I have listened to arguments which might have been addressed acceptably to the Court of Kings Bench in the time of Charles I.
After the Second World War, a number of judges made it clear that the judiciary would have the power to grant relief against the improper exercise of executive power. Dr Forsyth mentions that Lord Denning, Lord Diplock and Wade were the architects of the modern law of judicial review of administrative action, as an ever-present safeguard against the abuse of governmental power. Lord Diplock remarked that the creation of a comprehensive system of administrative law was the greatest achievement of the English courts in my judicial lifetime. There is no doubt that the writings of Wade and judgments of English judges paved the way for a huge body of tribunals wherein citizens could get relief against various executive decisions.
Wade was the Founding Member of the Council of Tribunals and served this body from 1958 to 1971. It is said that his evidence before the Franks Committee had an important bearing on the development and role of tribunals.
Wade had the distinction of holding chairs at both the Universities of Oxford and Cambridge. From 1961 to 1976, he was the Professor of Law at the University of Oxford and was Rouse Ball Professor of English Law at the University of Cambridge from 1978 to 1982. At Cambridge, he was also the Master of Gonville and Caius College from 1976 to 1988.
Sir Wade was made a Honourary Bencher of Lincolns Inn in 1964 and was made Queens Counsel in 1968. Further honours followed in 1969 when he was elected a Fellow of the British Academy and in 1985 he was conferred a knighthood for his services to administrative law. Dr Forsyth remarks that, strangely, the only university to award him an Honourary Doctorate was the University of Cambridge.
Wade came to India on more than one occasion. In 1974, he was in Chennai to deliver the M. Ct. M. Chidambaram Chettiar Lecture to an audience of 2600 people including eminent judges and lawyers. Wade remarked that it would be quite sensational if his lectures at Oxford were equally popular.
He came to India again in January 1992 to deliver the four Nambyar Lectures. The lectures were given at Bombay, Bangalore, Calcutta and Delhi and later published in a book titled Public Law in Britain and India.
The four lectures were on the following topics:
(i) Constitution Bedrock or Quicksand?
(ii) Judicial Review: The Foundation
(iii) Judicial Review: New Horizons
(iv) Government, Judiciary and Profession
In the first lecture, which was given at Delhi, Wade referred to the historic decision of the House of Lords in Anisminic case2. In this case, the Foreign Compensation Committee was constituted to deal with claims of damages to property in Egypt. An agreement had been reached between the UK Government and the United Arab Republic whereby 27 million pounds was to be paid to UK. This was in full and final settlement of claims of British nationals. The Foreign Compensation Tribunal was started to adjudicate claims by various companies whose properties have been nationalised or have otherwise suffered injuries. Section 4 of the Foreign Compensation Act, 1954 specifically stated that the determination of the compensation by the Tribunal would not be questioned in any court. The Court of Appeals held that they had no jurisdiction to interfere in view of the statutory bar. This was reversed by a majority of 3:2 in the House of Lords. The Anisminic2 judgment attracted widespread comment in 1969. The House of Lords held that despite the no-certiorari clause, they could interfere. A reference was made to the distinction between error going to jurisdiction and error within jurisdiction. Professor Wade supported the majority decision of the House of Lords in an article. He defended the judgment in his book as well. Wade had remarked that the House of Lords had refused to obey what was clearly the will of Parliament. But they did not proclaim open rebellion, they veiled their disobedience in a dense mist of technologies of jurisdiction....
In the Nambyar Lectures titled Constitution Bedrock or Quicksand?, Wade observed that the decision of the House of Lords was an act of disobedience of the sovereign Parliament, something that is constitutional blasphemy for a British Court. Wade further said:
When a British Act of Parliament provides that a tribunals decision shall not be questioned in any court of law, the House of Lords finds subtle reasons for making it mean the exact opposite of what it appears to say. When Indian constitutional amendments provide that no court shall question their validity, the Supreme Court rejects them as contrary to the Constitutions basic structure. In both countries the judiciary are determined to preserve their constitutional function of deciding the legality of governmental action. Putting it more technically, in the way British judges have done, it is fundamental that no government agency or authority should be the sole judge of the boundaries of its own jurisdiction. As Lord Denning once said, if tribunals were at liberty to exceed their jurisdiction without any check by the courts, the rule of law would be at an end. Although for my own part, I thought that the minority judges in Anisminic2 had the better logic on their side, at least according to the ancient rules, I felt that lawyers should excuse rather than criticise the House of Lords for placing an especially restrictive interpretation on ouster clauses, and for thus showing that judicial review was something special and fundamental and that even in the face of an Act of Parliament they would insist on preserving it. It was almost as if they were proclaiming that even our primitive British Constitution contains a single fundamental right, the right to call upon the courts to keep the Government within the law.
The view of Wade was criticised rather strongly by H.M. Seervai3. Wade expressed his astonishment that Seervai had devoted no less than 11 pages to denounce his attitude to Anisminic case. Wade added:
This long tirade begins at p. 1308, so if you wish to find it I do not suggest that you begin the book at the beginning.... Mr Seervai says that I praise open rebellion by judges against enforcing Acts of Parliament of which they disapprove, so as to destroy the rule of law... that my comments strike at the heart of freedom of thought and expression and at the intellectual integrity of the writer or critic, and that they are subversive of the rule of law though he also generously credits me with contributing to the upholding of the rule of law. Finally, believe it or not, he says that my comments are a passport to the road that leads to persecution and an unfree society and then follows a reference to the stake and the gas chamber that may then await those who presume to criticise.... It is a mistake to suppose any such thing. It is no less a mistake to suppose that, because I favour judicial resistance to laws which bar judicial review, I therefore favour wholesale judicial rebellion against Parliament. It is a mistake, furthermore, to suppose that this judicial resistance is subversive of the rule of law, for its effect is exactly the opposite. Mr Seervai seems to think that the rule of law demands that the courts confine themselves to the literal interpretation of Acts of Parliament, whereas our legal history shows that they have sometimes taken remarkable liberties with statutes which, when they have chosen their ground wisely, Parliament has accepted as it did after Anisminic case2 by passing reforming legislation.... The rule of law requires that the Government obey the law. It does not require that the law created by the judges shall never make progress. As for the stake and the gas chamber, I do not think that rhetoric of that kind is worthy of reply. So I will disengage now from this inexplicable controversy, repeating how much I admire Mr Seervai and his great work, with the exception of those eleven pages.
Seervai was not amused and reiterated his criticism in the postscript to Chapter XVI of the 4th Edition of his book4.
Wade has often been quoted in Supreme Court and High Court decisions. When we enter the word Wade in the search in SCC Online, we get response of 44 case notes, 151 judgments, 5 article notes, 25 articles and one Bombay High Court note.5 This shows the frequency with which Wade was quoted and referred to by the Supreme Court. Doubtless, he was quoted equally frequently by the High Courts as well.
In the death of Wade, the entire Commonwealth has lost a profound scholar. Authors of legal classics never die; they live on in the subsequent editions of their books.