INDEX

INDEX

1. Introduction to Lord Denning

2. About the book : The Due Process of Law

3. Common Wealth Citizens : Patrials

4. Lord Denning’s perspective on the topic

5. Conclusion

6. Bibliography

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INTRODUCTION TO LORD DENNING

Lord Alfred Thompson Denning (23 January

1899 – 5 March 1999) was a Populist English judge whose career spanned 37
years. He was known as a fighter for the underdog and a protector of the little
man's rights against big businesses. He served for 20 years as the head of the
Court of Appeals, one of the most influential positions in the English legal
system. He was made a Lord Justice of Appeal in 1948 after less than five years
in the High Court. He became a Lord of Appeal in Ordinary in 1957 and after
five years in the House of Lords returned to the Court of Appeal as Master of
the Rolls in 1962. Denning retired from the bench in 1982 under a cloud of
controversy regarding some racially insensitive views that he published. In
retirement he wrote several books and continued to offer opinions on the state
of the common law through his writing and his position in the House of Lords.

Denning was a controversial judge who was often the dissenting voice
on the bench. His decisions were based more on his religious and moral beliefs
than the letter of the law and he was often criticized for his subjectivity.
Denning was one of the most publicly known judges thanks to his report on
the Profumo affair. He was noted for his bold judgments running counter to the
law at the time. During his 38-year career as a judge he made large changes to
the common law, particularly while in the Court of Appeal, and although many
of his decisions were overturned by the House of Lords several of them were
confirmed by Parliament, which passed statutes in line with his judgments. Lord
Denning was a man of monumental influence over the development of English
law, both in its substance and style. One commonly held assessment of Lord
Denning’s jurisprudence (his legal philosophy and approach to law) is that he
was more concerned to “do justice according to the parties in a case” than
slavishly to follow precedent.

During the 1950s Denning began to earn a reputation for his

controversial judgements, which were often at odds with the opinions of the
other judges on the Court of Appeals. Despite the tension in the courtroom,
Denning found the work to be very satisfying. On April 24, 1957, he was
appointed to fill a vacancy among the Law Lords. The pace of the work was
much slower in his new position and he did not enjoy the work as much as the
appeals court. Five years later an opportunity arose for Denning to return to the
Court of Appeals. The Master of the Rolls, the head of the Court of Appeals,

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wanted to step down because of the administrative burden of the position and
Denning was appointed to take his place. Denning retained this role for 20 years
until his retirement.

Denning was a deeply religious man who allowed his personal ethics
to influence his judgements. He was president of the Lawyers' Christian
Fellowship and he noted that the book he read most often was the Bible. He had
a strong view of what justice meant and achieving justice was more important to
him than statutes or previous rulings. In a 1974 speech entitled Let Justice Be
Done, Denning concluded, "In our society, if we are to maintain civilization as
we know it, it is essential that each one of us does all he can to 'Let Justice Be
Done."' Despite such noble intentions, the subjectivity of Denning's decisions
made him the target of much professional criticism. To respond to the
controversy surrounding many of his decisions, Denning published The
Discipline of Law in 1979 when he was 80 years old. In this book he explained
that the law was outdated and it was up to judges to shape it to fit contemporary
needs. Though Denning was often the dissenting opinion on rulings, he
nonetheless introduced important changes to the legal system. Denning
impacted the language of the law through his emphasis on using simple
sentences to communicate legal issues so that lay people could understand the
law. He tried to communicate his points in a clear, direct manner and often liked
to present facts in the form of a story. Many of his decisions were also of
historic importance.

Denning fell out of professional and public favour during his last two
years on the bench. He was sharply criticized by members on the House of
Commons. To make matters worse, he offended black lawyers and judges with
a ruling on a case involving a riot in Bristol when he asserted that the accused
were acquitted because of black members on the jury. In 1982 Denning
published another book called What Next in the Law. The book outraged the
Society of Black Lawyers because some passages questioned the capacity of
Blacks to serve as jurors. There was such controversy over the book that the
publishing company had to recall it, change the offensive passages, and then
republish it.

Denning continued to work after retirement writing three more books

including The Closing Chapter, which gives his account of the events leading to
his retirement. At the age of 88 Denning was still active and even tried a small
pro bono case regarding private property in Andover. In 1997 Denning was
appointed by the Queen of England to the elite Order of Merit. Denning died on
March 5, 1999, at the age of 100 in Winchester, England.

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ABOUT THE BOOK : THE DUE PROCESS OF LAW

The Due Process of Law is one of the many books written

by Lord Denning. It was first published on 11 January 1980. Two central themes
run through The Due Process of Law. The first is the workings of the various
"measures authorised by the law so as to keep the streams of justice pure"-that
is to say, contempt of court, judicial inquiries, and powers of arrest and search.
The second is the recent development of family law, focusing particularly on
Lord Denning's contribution to the law of husband and wife. These broad
themes are elaborated through a discussion of Lord Denning's own judgments
and opinions on a wide range of topics. All the cases in the book are linked
together with a lively, yet thoughtful and thought provoking commentary,
written in what Lord Hailsham has described as Lord Denning’s “own
distinctive, staccato, but highly readable, prose style.”

Lord Denning’s “The Due Process of Law” is not just another dull law
book explaining the rules of practice of courts. The book starts with narration of
an interesting incident which happened in 1631 in Salisbury, UK. In a court
proceeding a brickbat was thrown at Chief Justice Richardson. The Judge had
his head on one side on his hand as the brickbat whizzed past. Straightening
himself he said “ If I had been an upright Judge, I should no longer be a Judge”.
Throughout the book the author leads us through the practical aspects of
common law like contempt of court, arrest and search by law enforcement
officials, injunctions for enforcement of contracts(mereva injunction), rights of
immigrants and the family law especially relating to deserted wife’s equity. This
is all told in a simple English shorn of legal verbiages. The author is candid
enough to mention about those of his orders which have been reversed by the
House of Lords(One instance is his orders on deserted wife’s equity).

This book will show Lord Denning as a sensitive but pragmatic Judge
with a strong grasp of legal fundamentals. This book can be understood even by
those who have not got any basic knowledge of the legal concepts. This, the
companion volume to The Discipline of Law, completes Lord Denning’s current
legal testament – his witness, until his next book, to the cause of justice. He
writes on difficult questions of law for the pleasure of ordinary folk: and he
succeeds. Yet, for all his racy style (its brevity and bravura could serve as a
model for journalists), and notwithstanding his sense of mischief and love of
fun, he has produced a serious contribution to the legal study, critical in our
time, of the role of the judge in the public life of a common law country.

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He has devoted his judicial career, which now spans one-third of a

century, to extending the range of the judge’s function in English, and,
indirectly, British, society. In this volume, he looks at the part he has played in
widening the range and increasing the effectiveness of the courts in five
branches of the law – contempt of court, administrative law, liberty of the
subject, commercial law and family law. The ‘golden thread’ of his argument
(to borrow the phrase Lord Simon used to describe the accused’s benefit of the
doubt in criminal cases) is that, if left to themselves, the courts can, under Lord
Denning’s kindly tutelage, solve the problems and do justice. He has a good
case, as Due Process shows. His name will always be associated with the
development of judicial remedies to control the post-war proliferation of
government agencies, central and local, which have been imposed upon
individual citizens ostensibly for their benefit. He has shown great ingenuity in
forwarding the growth of new remedies to restrain the abuses of international
trade, the immunities of sovereign states which themselves conduct trading
operations, and the activities of the pirates who prey on other people’s
performing rights.

In one respect, therefore, the book is misleading. The judicial process

it describes is not ‘the due process of law’ but only a part of it. Lord Denning
seriously underrates the importance both of the Law Commission, which has the
continuing duty of keeping the law under review with a view to its reform, and
of the legislative process whereby the advice of the Law Commission, and
others, is available to Ministers and Members of Parliament. The danger is lest
we be misled by the siren-sweetness of his story into believing that the judges
can offer us more than the forensic process can stand. As another great lawyer,
Lord Devlin, has pointed out, the British wish neither to be judged by
governments nor to be governed by judges.

Nevertheless, we, and posterity, are fortunate that the greatest judge of
our time has given us in these two enchanting volumes a sketch of himself in
action. The post-war years I once described as the age of law reform, legal aid
and Lord Denning. None of these would have been effective without the other
two. They needed each other: and together they have established a memorable
era in the long history of English law.

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COMMON WEALTH CITIZENS : PATRIALS

Patrial
/ˈpeɪtrɪəl/
noun
BRITISH
plural noun: patrials
Definition : a person with the right to live in the UK through the British birth of
a parent or grandparent.
"the 1971 Act classified people as patrials and non-patrials"
Origin :
Early 17th century from French, or from medieval Latin patrialis, from Latin
patria ‘fatherland’, from pater ‘father’.

 Immigration Act 1971 (c 77)

The Immigration Act 1971 (c 77) is an Act of the Parliament of the

United Kingdom concerning immigration. The Act, as with the Commonwealth
Immigrants Act 1962, and that of 1968, restricts immigration,
especially primary immigration into the UK. It introduced the concept of
patriality or right of abode. It was also partly passed to legally clarify the rights
of Commonwealth citizens within the United Kingdom in preparation for future
membership of the European Communities which the UK became a member
state on 1 January 1973 which gave new automatic rights to EC member state
citizens.

One result of the Act was to stop the permanent migration of workers
from the Commonwealth of Nations. It further elaborated the definition of
"patrial" migrants, first introduced in the Commonwealth Immigrants Act 1968,
as persons born in the United Kingdom and persons who had resided there for
the previous five years or longer. The 1971 Act by the very section, s 34, which
we are considering, repealed most of the enactments which concerned
immigrants, whether Commonwealth immigrants or aliens, and enacted a
complete new code. It divided all persons in the United Kingdom, wherever
born and whenever they first came or tried to come into the United Kingdom,
into patrials with a right of abode and freedom to live here and to come and go
(s 1(1)), and non-patrials who can only live and settle here by permission and
subject to such regulation and control as is imposed by the Act (s 1(2)) it was
not until the passing of the 1971 Act that the concept of patriality was defined

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or until the Act came into force 14 months later that the concept received
statutory recognition and that therefore it was not until the Act came into force
that a person could enter contrary to the Act. The word 'patrial' is used in the
Act of persons who are first defined by s 2 as having the right of abode in the
United Kingdom which is first defined by s 1.

 What main changes did it make to the law?

The Immigration Act 1971 was enacted and came into effect on
st
1 January 1971. This introduced key changes that built on the restrictions that
began under the Commonwealth Immigrants Act 1968. The main changes all
pointed towards restricting primary immigration.

The right of abode was introduced by the Immigration Act 1971. This
status represented an ‘unrestricted right’ to live and stay in the UK undisturbed.
This right would be enjoyed by people classed as ‘patrials’. This means that you
would not be affected by immigration laws; restrictions would not apply to you
and you could live freely without being deported from the UK.

The Act meant that you could now only enjoy the right of abode if you
had some kind of link to the UK. This would include those who were British
citizens by being born in the country or immigrating citizens who had an
ancestral connection to the country, such as having a British parent or
grandparent. The right of abode would also be enjoyed by citizens who had
resided in the country for the last five years. There was no longer any
distinction between immigrants from other countries and those from
Commonwealth countries; the commonwealth citizens had no special ‘rights’ or
automatic right to remain in the UK.

This change meant that those who were classed as ‘non-patrials’ under
the Act, would need permission to enter and reside in the UK. Previous Acts
had used a work voucher scheme to control and restrict immigration. But, the
Immigration Act 1971 took this once step further and now introduced a work
permit system. Once an immigrant was awarded a work permit, it would be
subject to annual renewal. It would only be after four years of working in the
UK that an immigrant would be allowed to settle in Britain without these strict
rules. Thus, they would only have temporary residence in the UK until this
point.

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LORD DENNING’S PERSPECTIVE

‘Patrial’ is a word used to describe a Commonwealth citizen who has

settled in UK for five years or more. He then acquires a ‘right of abode’ there.
Lord Denning describes this in the important case of R v Home Secretary, ex
parte Phansopkar and in the other case of R v Secretary of State for the Home
Department, ex parte Begum.

In the book Lord Denning states, “In 1971 the Parliament of the United
Kingdom invented a new word. It made a new man. It called him 'patrial'. Not a
patriot, but a patrial. Parliament made him one of us; and made us one of them.
We are all now patrials. We are no longer, in the eye of the law, Englishmen,
Scotsmen or Welshmen. We are just patrials. Parliament gave this new man a
fine set of clothes. It invested him with a new right. It called it 'the right of
abode in the United Kingdom'. It is the most precious right that anyone can
have. Parliament made it very easy for many an immigrant to become a patrial
and get this precious right. Those of us who were born here and live here get it
automatically. Those coming from overseas get it by being registered as 'a
citizen of the United Kingdom and Colonies'. This is not difficult, at any rate,
not for anyone who has been living here for five years, provided that he is a
Commonwealth citizen.

And here is the important point. Not only does he himself, on

registration, become a patrial and entitled to the right of abode here. But also his
wife does automatically. The only thing in her way is that she has to prove that
she is his wife; or, I suppose, one of his wives, if by their law, such is permitted.
To prove this, she has to get a 'certificate of patriality'. She can get this in her
homeland by going to the British High Commission there and satisfying the
officers there that her husband is a patrial and that she is his wife. Three or four
wives have tried to jump the queue. They have come to England without getting
a certificate of patriality beforehand. Soon after arriving at Heathrow they have
applied for a certificate here. The Home Office have refused saying it wouldn’t
be fair to others who have waited patiently for their certificate.”

In the Phansopkar case, Mr. Phansopkar immigrated to England from

India in 1966 and has hence worked there for many years, and then was
registered as a citizen through a certificate in 1974. The husband sought to get
his wife and their children to join him in England. It was to be arranged by an
agent in India. He sent 3,000 rupees to his wife as the agent's fee, but the agent
simply pocketed the fee and did nothing. So the husband went to India himself.

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He went to the British High Commission in Bombay. He was told, he says, that
they could not give an appointment for an interview for 21 months. This may
have been an exaggeration, because the Home Office say that at Bombay it is 14
months. At any rate, the husband did not want to wait for so long. So he decided
to bring them with him. This caused an issue and the immigration officer gave
instructions that wife was to be removed to India. But the case was taken up by
two members of Parliament and the United Kingdom Immigration Advisory
Service.

The reply from the home office regarding this case was, “It is
considered that the application [for a certificate of patriality] can be most
satisfactorily dealt with by the entry certificate officer at the British Deputy
High Commission in Bombay... It is regretted that, because of the very large
number of applications... there is bound to be some delay.” The application was
due to come on before the Divisional Court on 24th April 1975. On the day
before the husband and wife, in order to put their relationship beyond doubt,
were married at the Croydon registry office, and a marriage certificate was
issued to them, On the 24th April 1975, the Divisional Court refused her
applications but granted her leave to appeal.

The Begum case was quite similar to Phansopkar’s case. On 22nd April
1975, however, the Home Office refused to issue her with a certificate of
patriality and said she must go back to Bangladesh. They sent a letter in the
selfsame words as in the Phansopkar case: 'It is considered that this application
can be most satisfactorily dealt with by... the British High Commission in
Dacca...' On 22nd May 1975, the Divisional Court refused her application,
saying it was bound by Phansopkar's case.

This case has, however, an additional twist. The lady says that, if she is not to
be admitted as a patrial, she would wish to enter as a fiancée. She relies on r 50
of the Immigration Rules (1973), which provides: 'A woman seeking to enter to
marry a man settled in the United Kingdom should be admitted if the
Immigration Officer is satisfied that the marriage will take place within a
reasonable time. She may be admitted for a period of up to 3 months and should
be advised to apply to the Home Office for the removal of the time limit once
the marriage has taken place...'There is a short answer to that claim. Abdul Rouf
has regularly sent this lady money from the United Kingdom and has claimed
tax allowances for a wife for many years. So neither he nor she could say that
she is only a fiancée. If she is anything, she is a wife and must come as such.
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CONCLUSION

Each of these two ladies is entitled to come into England without

let or hindrance provided that she is truly the wife of her husband. She does not
have to seek permission. She comes as of right and not by leave. No one can
refuse to admit her, provided she can prove it by means of a certificate of
patriality: see s 3(9) of the 1971 Act.

Lord Denning stated that, “I do not think it can be taken away by

arbitrarily refusing her a certificate, or by delaying to issue it to her without
good cause. She can invoke the Great Charter: 'To none will we sell: to no one
will we delay or deny right or justice.' It seems to me to be implicit in this
legislation that a wife, who is truly a wife, is entitled to apply for a certificate of
patriality and to have her application examined fairly and in a reasonable time.
If refused a certificate, she has no right of appeal to anyone, not even to an
adjudicator or to the appeal tribunal: see s 13(2) and (3) of the 1971 Act. She is
then thrown back to the lesser class of those who do not enter by right but only
by leave: see s 3(1).If her right is to be of any avail, the authorities must set up
the appropriate machinery by which she can apply for a certificate of patriality.
There is nothing in the Act or the rules to tell us what the machinery is except
that a certificate of patriality may be 'duly issued to [her] by a British
Government representative overseas or by the Home Office': see the
Immigration Rules (1973), r 4.Seeing that it can be issued by one or other of
those authorities, I should have thought that her application could properly be
made to one or other of them; and that it should be entertained by that particular
authority -- the one to whom she applies -- unless there was some sufficient
reason for sending her off to the other.”

Lord Denning believed that each of those ladies were, therefore,

entitled to apply to the Home Office in England for a certificate of partiality and
that the High Office should have issued it to them. He thought that the officers
in Bombay and Dacca should have issued their applications without undue
delay. The delay was so long(14 months) that these two ladies, at any rate,
determined to test the matter by coming here and applying here. He thought that
in those circumstances they were justified to try and issue a certificate from the
British High Commission. He stated, “The Home Secretary ought not to send
these ladies back to India and Bangladesh to face the long delays. He ought to
examine the applications to see whether or not each lady is a patrial, and to give
or refuse a certificate according to whether she satisfies him, or not.
I would allow the appeal, accordingly.”

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BIBLIOGRAPHY

 R v. Secretary of State for the Home Department, Ex parte Phansopkar; R v.

Secretary of State for the Home Department, Ex parte Begum, [1976] QB 606, [1975]
3 All ER 497, [1975] 3 WLR 322, 139 JP, United Kingdom: Court of Appeal
(England and Wales), 11 July 1975, available at:
https://www.refworld.org/cases,GBR_CA_CIV,3ae6b62d1c.html [accessed 15
December 2019]
 All Answers ltd, 'Immigration Act 1971' (Lawteacher.net, December 2019)
<https://www.lawteacher.net/acts/immigration-act-1971.php?vref=1> [accessed 15
December 2019]
 Tom Denning, Baron Denning, (wikipedia.org)
https://en.wikipedia.org/wiki/Tom_Denning,_Baron_Denning [ accessed 15
December 2019]
 Alfred Thompson Denning. (n.d.). In YourDictionary. Retrieved from
https://biography.yourdictionary.com/alfred-thompson-denning [accessed 15
December 2019]
 Scarman, L., 1980. Leslie Scarman writes in praise of a dynamic judge. Review
of The Due Process of Law by Denning, Lord. London Review of Books [Online] vol.
2 no. 12 p. 6. Available from https://www.lrb.co.uk/v02/n12/leslie-scarman/leslie-
scarman-writes-in-praise-of-a-dynamic-judge [Accessed 15 December 2019].
 All Answers ltd, 'Lord Dennings Influence on the Law of Contract Is Beneficial'
(Lawteacher.net, December 2019) <https://www.lawteacher.net/free-law-
essays/contract-law/lord-dennings-influence-on-the-law-of-contract-has-largely-been-
beneficial-contract-law-essay.php?vref=1> [accessed 15 December 2019]

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