skip to content
 

Creating the framework of his beliefs

When Christopher Forsyth left the University of Cape Town in 1981 to undertake his PhD at Gonville & Caius, destined to remain at Cambridge for the rest of his career at the age of 33 years, he joined an illustrious cohort of legal scholars who had left South Africa to escape the legal and social injustices of the National Party’s apartheid regime.

In some ways this diaspora has analogues with the pre-WWII exodus of Jewish lawyers who formed the subject of the well-known Beatson & Zimmerman OUP volume Jurists Uprooted: German-Speaking Emigré Lawyers in Twentieth Century Britain. The analogy cannot be taken too far, but Professor Forsyth set out so clearly in his ESA interviews that his own decision to leave was driven partly by a realisation that despite aspirations, he could make no significant differences as a lawyer in ameliorating the harsh apartheid laws.

"I wanted to devote my career or life doing something about combatting the injustices that were everywhere in South Africa....it [had] seemed to me that law might be a direction to go.  I had naive ideas about using the law to create equality...[and]  turned towards law... I don’t regret that decision." (Q7).

In addition, however, there was his personal sense of wanting to conduct his teaching and research in a free and democratic academic milieu, in contrast to, for instance, his student days in Pietermaritzburg, when "I had my room searched quite frequently by the Security Police" (Q9).

"When I came to Cambridge I was delighted by what I discovered...that Cambridge was a self-governing community of scholars and I was naturally sympathetic to the democratic nature of Cambridge’s government...[when] I had had some experience of even the liberal universities in South Africa [which] come nowhere near Cambridge in terms of academic autonomy and self-government." (Q71).

For ESA I have been fortunate to interview/document the personal trials and tribulations of other South African legal scholars who chose, or were forced, to tread a similar path to greener pastures in the Common Law world, where their Roman-Dutch Law background gave them insights into a legal regime with which most western lawyers were only sketchily familiar: Bob Hepple[1], David Dyzenhaus[2], and Colin Turpin[3]. Many others in this diaspora spring to mind: Raymond Wacks[4], John Dugard[5], Ben Beinart[6] etc.

It is against this background that Professor Forsyth’s legal journey should be seen - a career that combined scholarship analysing the evolution of post-1948 SA politics and legal machinations, while making major contributions to UK law - in his case constitutional and administrative law, as well as his outreach to several Commonwealth countries on similar matters.

Christopher Forbes Forsyth’s parents, who were both South African, were living in England immediately after WWII, as his father, a specialist in "signals and radar", (Q1) stayed on in England, seconded to the British Army. Christopher was therefore born in England, and moved to South Africa when his parents returned in the early 50s. This was a critical time in South Africa’s modern history being shortly after the predominantly Afrikaans National Party had come to power in the fateful 1948 election. They had immediately begun to implement their doctrine of apartheid by introducing highly contentions legal restraints on the social fabric of South African life. Professor Forsyth vividly described how the realities of life under the new regime were brought home to him as an eight year old child, and which indelibly coloured his attitude to politics and society for the rest of his life.

The family were living in Vereeniging, a coal-mining and industrial town south of Johannesburg on the Vaal River in what was then the Transvaal, where his father worked as an electrical engineer. The 1958 general election had returned a popular Nationalist candidate to parliament, and Christopher, aged 8, was walking in the town with his mother.

"We had to get out of the way quickly because this group of rather rumbustious, probably slightly drunk men were coming down the road.  They were celebrating the victory of Blaar Coetzee [7] and I didn’t understand quite what was going on and my mother explained the rough outline of how politics worked and it seemed to me as soon as she explained it, that it was fundamentally unjust that black people shouldn’t have votes. So at that really early stage, under the tuition of my mother, my essentially liberal political views were established." (Q4).

A second, early traumatic experience impressed his mind when he was two years older and still at primary school. The family was still living in Vereeniging, and the infamous Sharpeville shootings of demonstrators (organised by the Pan-Africanist Congress) resulted in great loss of life. Sharpeville was a township adjacent to Vereeniging, and Christopher recalled on that day in March 1960  "...going out at break in my primary school and seeing the planes circling overhead that had come really to drop bombs if necessary. We saw them fly around about my school, and then going out to change my library books and two armoured cars standing outside the library. And my father going to work in rough clothes because he was going to spend the day shovelling coal into the boilers because all of the workers had gone on strike." (Q4) Such instances instilled a sense of grievance and uncertainty even before he attended secondary school.

To receive a semblance of normality, Christopher’s parents sent him to St Stithians College, a private secondary school run by the Methodists near Sandton to the north of Johannesburg. Here he was influenced in his liberal beliefs by both the Headmaster (Steyn Krige), and his English teacher David Brindley (who came from England). Apart from his liberal politics, Brindley can also lay claim to being responsible for Christopher Forsyth’s clear, logical writing style. "Brindley was an absolutely inspiring teacher of English and if my writing has any clarity and colouring it must in part be due to Brindley’s teaching.  He had great enthusiasm for vigorous English and use of colour and metaphor .... he was very impressive and had a great effect on me." (Q5).

Signs of colour and metaphor are sprinkled through Christopher Forsyth’s formal legal writings, and show up in many of his publication titles: I mention a few - golden metwand, In Danger for their Talents, Sleep of Reason, Fig Leaves and Fairy Tales, Showing the fly the way out of the bottle, Mind the Gap, Heat and Light, and Final Frontier. To use such language shows not only an imaginative style, but also a high degree of self-confidence in one’s writing. Brindley taught Christopher well.

Later, both Krige and Brindley left St Stithians, where they were considered too liberal, and Brindley ended up teaching at another college in the same area, Woodmead. It was a great coincidence, that David Dyzenhaus, one of Christopher’s later legal sparring partners, but several years his junior, should attend Woodmead and also fall under the influence of David Brindley.

By the time Christopher attended university at Pietermaritzburg in 1969, he was already "becoming more and more politically involved." (Q7).

Because his mother and father were both mathematically skilled, he originally chose to study Mathematics and Mathematical Statistics, along with two years of Economics, graduating BSc in 1972. But he realised that his mathematics was not good enough for academia, and he turned to law. In the Law school he fell under the influence of the Head of Department Professor Exton Burchall [8], a "...reasonable, thoughtful, perceptive and logical [man] in his approach to legal problems.." (Q7), whom, when a lecturer at Wits under Professor Ellison Kahn, had taught a youthful Nelson Mandela first year law [9].

A combination of his mathematical training and Burchall’s influence on his writing style are important factors to which Christopher Forsyth has attributed  his approach to law: "[I aspire to be] always logical and conceptual and founded in fundamental principles that one hopes everybody can agree about [before moving] on to see what else is implied." (Q7).

By the early 70s, Christopher Forsyth had become what today would be called a political "activist", and as an undergraduate at Pietermaritzburg, he "took part in many protests" (Q9). He was also involved inadvertently in a more formal sense, as the English-language universities by and large resisted the political and racial changes.

As he recalled  "there were some very good and noble and brave people whom I met at liberal universities in South Africa, and I was a small part of that liberal era... I was a supporter  of the old Liberal Party [10] .....[which] closed itself down because the government was insisting that it became uniracial...and the Liberal Party was founded on the idea of equality.  I attended the meeting that closed down the Liberal Party.  I then dabbled a bit with the Progressive Party and ...was a member of the South African Institute of Race Relations." (Q8)

It was while Christopher was undertaking his LLB that he began to apply his forensic approach to the niceties of Roman-Dutch law in two articles that involved criminal law [11], and the topic for which he later became a pioneer - private international law [12] (and which was the topic of his first book [13]), aka conflict of laws. When I asked him to sum up features of his academic career, Professor Forsyth said that in retrospect his contributions to private international law were areas from which he gained some pleasure. He recalled those early days in the troubled 1970s: "I remember what it was like in the old days before the subject had been invented practically and I and Ellison Kahn [14] were the only people in South Africa who were serious about the conflict of laws and how that’s now been transformed..." (Q71). Kahn, who was a doyen at Wits and about to retire  when Christopher’s views were presented in this seminal book, gave a review of the first edition (1981), and identified another trait in Forsyth’s writing style, to add to the virtues that I have listed above - "flashes of dry humour and dry wit."

Encounters with the outside academic world then a return to the apartheid fray

We have got ahead of ourselves slightly, as it took another eight years for his views on private international law to crystallise. After completing his LLB at Pietermaritzburg, Christopher decided that to broaden his personal and legal horizons, he needed to study abroad. Exton Burchell was influential in his choice, and having been at Cambridge himself, said it was the obvious place to go.

Christopher duly arrived in Cambridge in 1975 and joined Gonville & Caius college. Coming from the closed and politically febrile political climate of South Africa, he found the environment refreshing, and summed it up as "Part of the ....reason why I wanted ...to study abroad was to escape from the rather oppressive and cloying injustice dominating the South African legal system and to come to a democracy which functioned, and was relatively efficient....[it was this] positive aspect of the British political ...and administrative system... that attracted me to the UK." (Q17).

Two other features about Cambridge impressed themselves upon him. First the uni-sex nature of Caius in 1975 [15] - in contrast to the mixed classes at Maritzburg - and the high standards to achieve and high level of tutorial support that students received in the college.

He graduated LLB in 1977, having completed studies on Judicial Review of Administrative Action, Civil Liberties, Conflict of Laws and Comparative Law. While he was at Caius, Christopher recalled how he befitted greatly from the seminars given by the 1975-76 Visiting Goodhart Professor Otto Kahn-Freund [16], and Kurt Lipstein [17] who was then Professor of Comparative Law at Cambridge, and both of whom were part of the German Jewish diaspora prior to WWII: "...very often both Kahn-Freund and Kurt Lipstein would come to the seminars together and they would present joint seminars. That was very stimulating and exciting...They often held quite differing views...but the most important thing is that they were both enthusiastic .." (Q20).

One of the other interesting and uplifting personalities at this time, and with whom Christopher Forsyth later became very well-acquainted was a doyen of Magdalene College and the Faculty, Mickey Dias [18], who was a lecturer in law at that time. Mickey had come over to England with his father from Ceylon on the eve of WWII, and stayed, and despite his apparent shyness, was a remarkably enterprising personality. More of Mickey anon.

Thus, by 1977, armed with his Cambridge LLB, Christopher was at something of a career cross-roads. He needed a job, yet was reluctant to return to South Africa, with his doubts about the efficacy of law as a tool for good. He made, what in retrospect he admits was an error in trying to "escape" to the antipodes by taking a job at the University of Canterbury on the South Island of New Zealand, in the process of which he made some good friends in the Faculty, which he still retains.

"I had the wrong idea with New Zealand in mind.  I thought it would be like Britain but in the South Pacific.  It would be warm and gentle and a bit exotic.  It turned out that Christchurch was pretty cold and snow on the ground....[and] New Zealand turned out to be a very long way away from anywhere ...You get there and it all stops, so I just felt very isolated." (Q23).

Luckily, a post at the University of Cape Town became vacant, and despite his misgivings he decided to return to South Africa, lured by the prospect of organising, at the height of apartheid, a conference on Human Rights. He looked upon this as a huge challenge and a way of embarrassing the Nationalist government. It turned into a case of brinkmanship, which Christopher and UCT won by dint of throwing down the gauntlet.

"We fought quite a battle with the South African government because they refused to say which people required visas...[while] people who required visas...wanted the South African government to say, ‘Yes.  We’ll give you a visa’. But the South African government refused to commit itself in advance. These were very leading people from the worlds of academia - USA, Europe, the UK and so on. In the end we took the decision to apply for the visas and force the government to turn down the visas if that’s what they wanted to do and they could deal with the opprobrium...rather than cancel the conference ourselves. So we did that and it worked. The government couldn’t face turning down what were in fact distinguished professors and scholars....not exactly revolutionaries. The government granted the visas, they all came through, [and] everyone that wanted to come was able to come..." (Q24).

The results were published in a volume of the UCT law journal Acta Juridica so his first year back was something of a triumph for exposing the vulnerability of the government to international pressure.

Christopher related three further significant events that occurred during his time at Cape Town.

The first was his experiences on two campuses that had been established as a result of the notion of "separate development". He also relates this in a footnote in the book that resulted from his PhD [19], and I quote this and then relate his reminiscences of the events as told to me in his interviews.

On page 229, footnote 27, he says "I was privileged to teach jurisprudence at the University of the Western Cape for two years. It was one of the most challenging and rewarding tasks I have ever undertaken. Challenging because of the (understandable) bitterness of students, and rewarding when one broke through the barrier...[and having read Dugard] associated anything that had the label "positivism" attached with support, witting or unwittingly for the present order in South Africa..."

Sixty three years later, he related this experience partly as an amusing anecdote.

 "... [It] opened my eyes a great deal to see a university like that operating.  The formal language of the university at that stage was Afrikaans and the audience consisted in the main of people.... of mixed race.  I taught jurisprudence...[but] the only thing of note...[was] that I had two lectures on Marxism, and again this is in the somewhat fetid political atmosphere of South Africa....[my first] lecture on Marxism [was] to show how persuasive it is and how valuable it is in explaining things that happen. [W]hen I finished the lecture the students, I’d always liked to think as a result of my lecture, but in fact I’m sure they were quite unrelated, [the students] had a protest and burnt down the lecture theatre the day afterwards, and I had to give my second lecture on Marxism in which I explained all its weaknesses in a different lecture theatre...". (Q31).

A further set of dramatic incidents occurred when he lectured to the students at the University of Fort Hare, which was in the Ciskei, one of the "independent homelands" established by the government.

"I arrived at the University of Fort Hare as a visiting lecturer teaching private international law...This was in about 1982/1983 and I couldn’t give my lecture because there were armed men on every corner of the campus, the Ciskei police. The students had [been protesting] and had been set a deadline that they had to return to lectures by a certain point otherwise they’d all be dismissed. They didn’t return to lectures, and they were all dismissed and sent away from Fort Hare. Some of the students were unhappy with this. I was one of the members of staff who was known to their lawyers which they had brought in from Cape Town.  Ian Farlam [20] was one of them.  He was a well known counsel in the Cape and I think afterwards a judge.

One of the issues was whether the students didn’t go back to lectures because they were so scared by all the armed men on the campus and the Rector of the university made an affidavit in the proceedings to say they were no armed men on the campus on that day. I then made an affidavit saying I was there on that day and there were, indeed, armed men on the campus and this all featured prominently in the litigation when they challenged their dismissal. They lost before the Ciskei courts, the judge saying at one point that he noticed the affidavit that I had made, but he didn’t believe it.  So I was disbelieved under oath in the Ciskeian High Court...I see that rather as a badge of honour". (Q31).

This shows both the physical violence and the pathos of teaching law in South Africa at this time.

The second event of great significance during his time at Cape Town, was Christopher Forsyth’s three to four week visit to the Peace Palace in the Hague, funded by a scholarship by the Hague Academy of International Law in 1979. Its significance was that "....after I’d been to The Hague I came back and conceived of the idea of writing the next book on Private International Law. Lots of the ideas that I developed there gave currency, certainly in South Africa...of multilateral choice of law rules being used to lever the uniform decision out of the mass of otherwise incoherent approaches to the subject and that all comes from essentially the European influence on me through The Hague Academy." (Q27)

Finally, I must mention two seminal papers that Christopher wrote while at Cape Town, in which he set out his jurisprudential views in the Roman-Dutch law, which formed the backbone of  South African law at that time. Both articles explored the relationship between society - as manifest in human rights and liberties - and the legal ethos and the role of administering justice. This illustrates how deep a thinker Christopher Forsyth was in his approach to law, which was not just based on mechanical applications of statutes.

He told me how the first of these articles [21] was grounded in his readings of Karl Popper[22],  whose works he had begun to explore while at  Cambridge in the mid-70s. Popper’s work on scientific method was statistically-based, which must have appealed to Christopher’s mathematical alter ego, while Popper’s political views were based on his attempt to reconcile differing political ideologies. One of Popper’s critiques was that Marx’s views had been taken by his followers and twisted to suit their own political ends. Christopher saw such traits in sections of the contemporary South African intelligentsia, and his paper was " ....to counter a view which was quite common in left wing political circles in South Africa to the effect that there is very little point in having a judicially enforceable bill of rights in South Africa because this would prevent an incumbent democratic government from redistributing the property in accordance with the Marxist visions." (Q28).

Christopher explained, his analysis  " [took] Popper’s critique of Marxism and focused it into a South African context...[which]  unsurprisingly, lead to the conclusion that we should have a democratic polity and use the judiciary to enforce human rights.  I will not say my article had this effect, but it was on the side of history...because these days nobody suggests that judicially enforceable human rights are worthless or prevent a proper political reform. It was a defence of classic liberalism and made quite a fuss at the time. [It] didn’t make me popular, but I am quite pleased." (Q28).

In a follow-up paper [23], "The judicial process, positivism and civil liberty", he analysed the views of John Dugard, a fellow South African legal thinker, whose approach  has also attracted the attention of another South African legal philosopher, David Dyzenhaus.  Christopher explained to me that "John Dugard had become in South Africa the proponent of the view that judges have a judicial discretion to make the law and therefore it was reasonable to call upon the judges to remake South African law in a way that excised obvious injustices of racial discrimination, inequality of all sorts. This requires of course of the South African judges at that time, what I call court "stimulism", an idea that law was the command of the legally superior..This positivist view said Dugard, should be rejected and instead we should adopt a view so that the judges could intervene and say, ‘No, this is an outrageous law.  It’s discriminatory,’ or whatever it is.  We’re going to strike it out as a piece of law...’ " (Q28).

Christopher’s views as expressed in this paper had been forged in jurisprudential debates he had had with a fellow academic in the Law Faculty at UCT, Johan Schiller. The latter was a visiting Austrian lawyer who lectured in the faculty for a few years, and with whom Christopher would walk and talk legal philosophy on rambles up Table Mountain - metaphorically in the clean air, high above the tangled world of politics that literally lay far below, at their feet. In essence, Christopher’s views on positivism that emerged from their friendship was that " [Schiller] was firmly of the view that positivism was not a theory of the law, it didn’t tell you what the law was, but a theory of knowledge, it told you how to find out what the law was. [We agreed]  ,  that you...found out what the law was...through the [application] of reason and logic to  the sources of law...apartheid is a legal phenomenon enforced by an army of civil servants and judges and policemen or whatever...[and] it’s done according to the rules to a greater or lesser extent. [But] how do you account for this phenomenon?  It’s there, it’s real. You could see it in South Africa every day...You had to have a theory of knowledge [that law was to be] found out by looking at the sources of the law and applying meaning and logic to them. 

If, as in South Africa’s case, that meant that you had to attribute the status of law to the enactments of a deeply undemocratic sovereign parliament, you had to face up to that reality...[and it was] just wishful thinking...[to say] that the judges were going to step in and say, "This particular law is no longer going to have an effect."  It just wasn’t going to happen." (Q28).

These two articles caused a "bit of a stir", but were contributions to the debate in South Africa of which Christopher Forsyth said he was "quite proud" (Q28), and in some ways were his parting gift as a teacher in South Africa.

Return to Cambridge and new legal horizons

Christopher Forsyth returned to Cambridge and Gonville & Caius in 1982 to undertake his PhD in which he further explored the notions on which he had been cogitating while at Cape Town. He was supervised by a fellow anti-apartheid emigrée Colin Turpin, who had left the University of Natal (Durban) in 1961 as a reaction to the Sharpeville shootings. Colin was a "very gentle, perceptive man" who had written many articles on South African law as it was in the 50s and 60s [24].

Christopher chose for his topic a semi-statistical analysis of judicial decisions in the appeals court in South Africa since the Nationalists had been in power[25]. Specifically, he analysed  how the judiciary had performed during this period, and to see whether it was right to criticise the judiciary on the grounds that "the law was seldom so certain that the answer to a particular question was compelled and had to be reached and therefore the judges had a judicial choice in many, many cases and they should have made the choice that favoured human rights and personal liberty."

Working in the old, characterful Squire Law Library, then on the first and ground floors of the Cockerell Building in the Old Schools part of Cambridge, Christopher reminisced on his time there and the personalities with whom he associated it.

 Keith McVeigh had taken over as Librarian (in 1983) on the death of the charismatic Professor Clive Parry [26] (1982), and "[McVeigh] was one of the characters [in the Squire, along] ...with Kurt Lipstein of course [who was] always to be found in the Squire Law Library...[It] had quite a distinctive smell to it of old musty books and polished linoleum...I spent many, many hours working there.  The path of the research student is often a lonely one so it was always nice to gather with other research students and I was blessed by the fact that I was a student in Caius....so one could just pop across the road to the MCR in Caius to have a cup of coffee or whatever....[I also] remember Keith McVeigh helping me obtain what was the first report I read on Lexis.  You had to talk to the Librarian about it before you could log onto Lexis through a telephone modem and eventually the report [could] be printed out in an unconventional format. How the world has changed since then." (Q34).

He also remembers the accommodation, or lack of it, in the old Squire, upon which numerous other ESA scholars have commented. Few current Faculty staff members now remember this (the Squire moved to its current Sidgwick site in 1995), so it is germane to record such details. 

"...as a student I would sit in one of the readings rooms and as a don [ie after 1983] I would go into the Squire much more frequently than I do these days, the reason being of course that you didn’t have electronic resources.  If you were going to do serious work you would need to have [physical] access to a law library....So I spent a lot of time in the little rooms that were off  the main hall....up on the first floor [it] had a whole series of little rooms ...you would find Kurt Lipstein and Bill Wade [27] and me. Kurt had his own little room and Bill had his own little room....[which later] became the room that Bill and I used as we worked together on administrative law." (Q40).

It was during these years that Christopher Forsyth began his long association with the new Robinson College that was rising from the ground on Grange Road, behind the main University Library. He is almost unique in being one of the Fellows who has been in place from the very beginning of its development, and his memories are special. I asked him if he was associated with the college from its start. "Pretty close to its beginnings.  I was elected a Fellow in 1983 and ...was Praelector in the first occasion that Robinson presented a full tranche of over a hundred students to general admission to get their degrees. That was in ’83.  I think these students would have been admitted in ’79 or ’80." (Q36).

Christopher was Director of Studies at Robinson from 1983 to 2002, and in the process of describing his duties he showed his enthusiasm and dedication to teaching.

 "One had to participate in the interviewing of candidates and the decision-making on which candidates to admit... I took that quite conscientiously because you’re really changing the lives of people...and then I had to teach, to supervise the young and I supervised in five subjects, doing about 17 hours a week, which is a much broader range than would be commonplace these days...As a teaching fellow I had to do a fair bit of teaching, but I did more teaching than I was required to do chiefly because I came to enjoy it.

I like to see the students’ faces light up when they understand a point, ....particularly in supervisions although I never had an undergraduate supervision myself in Cambridge....[and had]  no experience of it from the receiving end...a major duty of the Director of Studies [was] to arrange the supervisions for his or her students..." (Q35).

During our conversation Professor Forsyth threw some light on the deep  association that one of our Goodhart Professor’s had had with Robinson College - the late Sir John Laws [28].  His comments also touch on the close personal relationship he and Laws had had, as well as UK constitutional issues that Laws espoused and with which Professor Forsyth was becoming deeply involved. His remarks add greatly to the tribute ESA already has for John Laws.

"I recall John Laws as a friend. I was fortunate when using one of my sabbaticals to qualify for the Bar to be John Laws’s pupil and I had a most exciting time. As his pupil I would rush around behind him as went through the courts.  He was Treasury Devil at the time [29].... [and was] employed by the government to defend it in court and this means essentially in judicial reviews. I would dig out the authorities for John where I’d draft him things which he didn’t necessarily agree with. We attended numerous conferences with its civil servants to discuss their legal problems and it gave me an invaluable insight into the operation of judicial review...[also] the operation of government litigation...to sense when government is fighting a point on tactical grounds or when they’re fighting a point on strategic grounds....[This] introduced me to judicial review in a way that I hadn’t previously experienced....John Laws was a most remarkable man, ebullient and witty and really brilliant...he had a successful barrister’s knack of being able to pick from a whole range of different issues and arguments...the crucial one and rely on it...probably one of the best advocates at the Bar. Then he went on to the Bench and was a very successful judge, although sadly he never made it to the Supreme Court.... 

I don’t think this is confidential, but I in fact proposed his election to the Goodhart chair. He was already a Fellow of Robinson because ...I’d proposed him as an honorary Fellow when I returned from the Bar...As a Goodhart Professor he would probably have been elected to a fellowship with a bigger, more prestigious college but in fact he was very loyal and insisted that he was going to stay at Robinson. 

He became a stalwart of what is called ‘Wednesday night supper’ when fellows of Robinson would gather for an informal supper in the SCR. John really revelled in that because it ...was talking about more political or intellectual matters and the debate would often be quite rumbustious and lively.." (Q38 & 39).

Christopher’s relationship with John Laws illustrated an interesting conundrum with which Barristers are faced. In the early 90s (while Christopher was a university lecturer), he had occasion to attend a court hearing relating to the deportation of a Zairean national failed-asylum seeker - M, which M was resisting. Christopher Forsyth was clearly in favour of a stay of action which had been brought on judicial review, and one suspects Laws would also have supported - but Laws was the Treasury Devil and was acting on behalf of the Home Secretary who was resisting the decision not to deport M.

"I had just stopped being John Laws’s pupil at the time but I was in court for the one day... John Laws  was the Treasury Devil... acting for the Home Secretary...he persuaded the Home Secretary that in fact you could not make a coercive order such as an interim injunction against a minister of the crown because they partook of the immunity from legal process of the crown, and this is what John Laws persuaded the judge.  Consequently the judge discharged the injunction..." (Q46)

The case eventually went to the House of Lords[30] which in 1993 ruled that the Home Secretary (then Kenneth Baker [31]) could be held in contempt of court and was not above the law. A major constitutional case, which because of his position, John Laws was on the wrong side of.

The academic ladder

In 1988 Christopher Forsyth embarked on a university career that took him progressively up the academic ladder which he ascended steadily: lecturer 1988-2000 (12 years), Reader 2000-05 (5 years), and Professor of Public Law and Private International Law 2005-16 (11 years), and in 2016 was the inaugural Sir David Williams Professor of Public Law. There is a photo in the Malcolm Clarke collection in the ESA of Christopher Forsyth giving a lecture sometime in 2002 (i.e. when he was Reader).

His teaching centred on administrative law, which became his mainstay for "twenty fives years all told" but he always taught Roman law because  he "enjoyed" it (Q43), and for ten years after becoming Reader, he was the Director of the Centre for Public Law. In his early years he also taught conflict of laws and constitutional law, but as the work load of his duties mounted he tried to "shed subjects" (Q45).

The Faculty move

During Christorpher Forsyth’s time as a lecturer, he was involved as were all other staff in the Great Move - the translocation of the Faculty and the Squire Law Library from its site in the Old Schools, which it had occupied since a previous upheaval in 1936 (when they had relocated from the Downing Street site, built with the original Squire estate donation in 1904 [32]).

As described by several of our previous Eminent Scholars (inter alia Sir John Baker, and John Spencer), the move from the Old Schools in 1995 had been a fraught affair. However, since there is no official narrative of the lead up to, and the problems faced on the Sidwick site, these ESA accounts all add details to a saga that will soon be lost to the memories of modern staff members (being nearly 30 years ago).

I asked Professor Forsyth of his recollections and whether he had any active involvement in the relocation. "No, I didn’t.  I attended various faculty discussion mornings and I remember one in particular when Norman Foster [33] came to introduce his design... A meeting of the Faculty took place in the Senior Parlour at Caius, one of their larger public rooms, and Norman Foster explained his design...[and produced a] great big pictures of what it would look like....some member of the Faculty...raised the issue of noise and the prospect that noise might filter through into the supposedly quiet reading areas of the Squire Law Library. Norman Foster said, "no", he knew what he was doing, noise was not going to be a problem because it would all have died down before it reached the quiet areas....

This representation induced the contract....[but] afterwards [the issue] became a great controversy as to who would pay for what we called in the Faculty "remedial action", to build the glass wall that now ensures that the noise from the vestibule of the Squire Law Library doesn’t intrude into the quiet areas of the library.  That was known as the "remedial works" amongst the members of the Faculty and "specification enhancements" by Foster." (Q41).

The post-move installation of the infamous glass screen was done at great expense, but no previous accounts had mentioned who paid the cost. I asked Professor Forsyth.

"We were all sworn to secrecy and we’re not supposed to tell a word but I think it’s enough to say that the Faculty didn’t pay." (Q41). Another small piece in the jig-saw puzzle of the 1995 saga.

Robinson College

Professor Forsyth’s long association with Robinson College, his friendship with a prominent Hong Kong philanthropist and banker with strong links to the University of Hong Kong, Sir David Li [34], and the establishment of the Sir David Williams chair of Public Law are an intricate mosaic of relationships, the details of which are probably known only to Christopher. I believe it is worth recounting at length his memories of it as again it is a tale of which soon no-one else will be able to give a personal account.

"I’ll tell you about Sir David Li whom I know very well. I first knew him through his son who was a law student at Robinson College - I admitted him and taught him several subjects and....[W]hen I was going to Hong Kong on other business it was quite natural that I should see his parents...We hit it off and David and Penny Li became a fixture on my subsequent visits to Hong Kong. He [had] studied law as well as economics at Selwyn and had a great interest in the government of Hong Kong, [and] served on the ExCo and  LegCo [35]. The family bank is the Bank of East Asia and that’s a substantial bank in Hong Kong and in Southern China and Southeast Asia.

David came to believe that as I was an administrative lawyer I should have more to do with Hong Kong. He was also a very good friend of David Williams [36] and he conceived the idea that there should be a chair named for David Williams and that I should be the first holder of it. This [was a ] suggestion, which I obviously didn’t object to.  I was [however] somewhat sceptical....because I was getting close to retirement...and of course it’s in breach of all the principles of free and open competition. This proposal was put forward by David Li who...is a great philanthropist and has funded good projects without number at the University of Cambridge included in the Law Faculty....[H]e gave the university the offer of the  endowed chair, but it would have to have me as the first holder.  So the university voted for me to be the first holder.[No ballot was held on the grace]...The great thing is that the chair is tied to Robinson College and it [could] become one of the most prestigious chairs of public law in the UK which means that Robinson College will have one of the leading public lawyers in the country amongst its fellowship in perpetuity. I think this is reason to be very grateful to Sir David Li." (Q62).

This created a complex prerequisite for subsequent holders and I asked him about this, in relation to Professor Alison Young [37], who took Professor Forsyth’s place when he retired in 2017. "...It’s designed to make it very difficult for a person to become the Sir David Williams chair, [and] not be a professorial fellow of Robinson. I think there’s a little bit of wriggle room if the individual is a member of another college and ....there may be difficulties and the chair may go to another college. [But] that’s a reason why Alison Young is the second holder in Robinson.  

What I should also say, David Yates [38], then Warden of Robinson, was also a moving spirit behind the chair... At the grand dinner we had to launch the chair.  I made a speech in which I said, "This is a tale of three Davids.  There’s Sir David Williams, David Li and David Yates who brought the chair into existence." (Q63).

Hong Kong

From this relationship with Sir David Li and Robinson College, there also sprang Christopher’s association with the Chinese University of Hong Kong, where he eventually served (2005) on the Legal Academic Advisory Board which helped establish the School of Law thereat. He continues to serve on this Board.

Much later he also became associated with the University of Hong Kong where he was for two years (2017 – 19)  the Cheng Yu Tung Visitor Professor in Law.

This interest in Hong Kong manifest itself in several papers. Two of these[39] were in the early 2000s while he was Reader, and both were on legitimate expectations, a topic in which he had been interested since 1988 when he first became a university lecturer. He explained that "What happened [was] that China had resumed sovereignty over Hong Kong [40] [in 1997] and these complicated cases arose out of who was entitled to enter Hong Kong from the mainland and various promises had been made. The question was whether those promises granted a legitimate expectation to the individuals to whom the promise had been made and has to be taken into account in deciding whether they were allowed to come into Hong Kong.

Various decisions [had been] taken that effectively determined that the legitimate expectations were valueless, that they didn’t benefit the individuals at all. That was challenged in the Hong Kong courts and they won in the Hong Kong courts. Then the Hong Kong government, with the connivance of the Chinese government, referred the matter to the Standing Committee of the National People’s Congress which was a non-judicial body...and it overturned the decision of the Hong Kong courts so the legitimate expectations were ignored....So I became involved in writing about these things in Hong Kong." (Q57).

He was asked to advise the Hong Kong government on questions of constitutional and administrative law. Also, during his involvement with the Advisory Board to the Faculty of Law at the Chinese  University of Hong Kong, Christopher, Mark Elliot, Swati Jhaveri [41], Michael Ramsden [42], and Anne Scully-Hill [43] organised a conference in Hong Kong in 2008 on administrative law, the proceedings of which were published as an OUP volume (2010): Effective Judicial Review: A Cornerstone of Good Governance. Consequently, his later close relationship with Sir David Li around 2015-16 apropos the Sir David Williams chair is understandable.

With his intimate knowledge of the situation in Hong Kong, I thought he might have some insights into the current (2022) political/legal situation in Hong Kong regarding the recently introduced security laws and more or less direct rule from Beijing, but Professor Forsyth seemed as perplexed as anyone else. Nevertheless his views are worth recording.

"That’s a very difficult question to which I feel I don’t know the answer.  I have been involved with the Department of Justice in Hong Kong for more than 20 years... So I know them very well and many of the people who work in it. I’m going to be a bit cautious about saying anything about anybody because one doesn’t know what comeback there may be to them....but it’s certainly the case that Hong Kong people as a whole are committed to democracy and the Department of Justice and many people in the Hong Kong government would be similarly committed...That is now something that has to be confessed in secret....It’s to do with lack of compromise.

The government of Hong Kong was always going to be influenced by [its] huge neighbour lurking over its shoulder... Much of the fresh water...the electricity supply and much of the food comes from mainland China....[T]here was just insufficient compromise by the Hong Kong democrats who wanted things such as independence, which were just never going to happen, and the mainland Chinese government which didn’t have the good sense to realise that it had a pearl of great price in Hong Kong that it could easily destroy. It just had to accept that things were done differently in Hong Kong, [where] the government should be criticised.  What happens now, I don’t know." (Q68)

Professor Forsyth retired from Cambridge academic life in 2017, but for two years he continued his visiting professorship in Hong Kong.

Altruism and public service

In addition to his teaching duties, his academic tenure since 1988 is characterised by a remarkable catalogue of academic and public duties. These show the underlying caring and quiet sense of loyalty he has shown to the institutions in which he finds himself. There is an unassuming, but steely resolve to serve society in the broadest sense of the word. I will mention some of these to give a view of the wide range over which he gave of his time and talents.

UK police matters & justice

One example begins early in his Lectureship, namely his long association with the Cambridgeshire police authorities - from 1989-2010. He outlined this in a fulsome answer, which is worth précising because it shows how seriously he took such work.

I asked him about his interest in policing matters, and perhaps not surprisingly it harked back to his previous life. "I was interested in the constitutional status of the police because of course it’s something that I had knocked my head against in the situation in South Africa:  how do you ensure that the police are within the law. [At the] University of Cambridge the Proctors had .... for centuries had been involved with the policing of Cambridgeshire...and they were statutorily powerful right until the 1964 Police Act. I was quite interested in this and David Williams was one of the representatives on the Cambridgeshire Policy Authority and he suggested that perhaps I might want to become a university representative. [LD - his proctorships began in 1988 and continued in two stints  until 2004].

I was first a university representative and became Proctor. I [then] became a member of the police authority as a Proctor ex officio....[until] I was abolished for the first time. [LD - in 1993]. That is when Michael Howard [44] as Home Secretary introduced legislation that removed anomalies such as university representatives...and established in its stead a system of what was called "independent members". [They] were appointed by the police authority subject to approval of the Home Secretary. I cast my hat in the ring and duly became an independent member of the Cambridgeshire Police Authority...When I came up for renewal the second time David Blunkett [45] was Home Secretary and he refused to approve my appointment... So I have the distinction of having been abolished from the police authority both by a Conservative government and by a Labour government....

The police authority consisted in those days of a mixture of magistrates and county councillors and then the university representatives....[they knew] I was politically completely impartial, so I found myself doing all kinds of jobs which might have been done by other members of the authority....[For example]  I chaired several appointments committees for chief constables and assistant deputy chief constables and I ran for many years the lay visitor scheme, whereby good citizens appointed by the police authority have the right to turn up at any police station at any time to say they’ve come on a visit and they ask the prisoners whether they’ve got any complaints, whether they’ve been well treated.... I did that for many years... I also chaired several disciplinary hearings held against assistant chief constables... I tried very hard to be impartial.... One particular case was of a policeman who arrested a woman on the streets of Cambridge and raped her....an investigation was launched and the miscreant was convicted and sentenced ...and the police authority removed his pension.... I chaired the committee that decided that he was going to lose his pension....[He]...took us on appeal... and I went up to the appeal hearing in the crown court in Leeds...to give evidence...I’m pleased to say the appeal was rejected and he then went to Europe and lost in Europe as well, so his pension was removed.  So this kept me busy. I enjoyed the work in the police authority and was sorry when I was not re-approved by David Blunkett." (Q44).

One can only imagine how time consuming this was, on top of his academic duties, but undeterred he persisted with this work in administering public justice and he recounted how  "[After] I was thrown off the police authority...I conceived of the idea ....of becom[ing] a Recorder [46] and I threw my hat in the ring.....and was interviewed by a panel of civil servants and magistrates and judges....most Recorders have done 20 years in the criminal courts and are completely familiar with the operation of the criminal courts and I wasn’t. But I had always been interested in criminal law and I felt sure that my knowledge of the procedure of administrative law would probably stand me in good stead....

I was duly appointed a Recorder, trying serious criminal cases,[with a jury]  but I wasn’t senior enough to do sex or death....I enjoyed much of it...[though] I struggled at the beginning.. I don’t think I did any fundamental injustice. [I] would go and sit as a Recorder for a week, sometimes two weeks,in the Crown Court in Cambridge, Chelmsford, Peterborough, Basildon  and occasionally in London. I found after a week in the criminal courts I was very pleased to come back into the university where things are much more ordered, people don’t regularly lie all the time to you. It all became too much for me in the end.  I was quite pleased to give up being a Recorder.

I did [also] sit as a Deputy High Court Judge trying administrative law cases[in the Royal Courts of Justice] for three years in total.....weeks taken out of the three-year period and I enjoyed that much more [than being a Recorder].... but then had to retire through ill health....but I enjoyed sitting in judicial review cases, [putting] the considerable theoretical knowledge I had of judicial review into practical application." (Q65).

This represents almost two decades of public service in the UK in the practicalities of administering justice - an academic subject on which he had a deep knowledge.

Emerging democracies

Christopher Forsyth’s sense of giving his expertise and sound judgment to a wider society also extended to helping developing nations in their quest for good administration. This was particularly so, but in no way confined to Africa.

He spoke of his work during 2000-17 (starting while he was Reader) when he was a member and later Manager of the Centre for African Studies in Cambridge.

"Under the constitution of the African Studies Centre there’s scope for a nominee from the Law Faculty to sit on its Board of Management ...and I served [on the board]  first as an ordinary member of the committee and then later as Chairman of the Board...selected by the other managers. I quite enjoyed the Centre for African Studies work because it gave me insight into other parts of the university. It was really service to the cause of Africa... and I became part of the furniture at the African Studies Centre and was rather sorry when it all ended. I retired and thought the time had come for me to give way.  We did some good things. The Director at one stage was a chap called Ato Quayson [47], and he succeeded in raising quite a bit of money from North America...We had a series of research fellowships...four or five every year from all parts of Africa and it was a lot of work selecting the successful candidates....We had to communicate with people in countries that didn’t have the things that we were taking for granted such as email and the internet,... [so] we ended up effectively appointing people without interview. It was a good thing." (Q56).

A further example of his work in helping to advance democracy and good governance in Africa took Christopher inter alia to Malawi [48] in 1998 as a technical advisor on constitutional reform to the Law Commission. He described how he helped the country overcome some of its post-independence constitutional problems, and how much he enjoyed interacting within different cultures.

"That was something I greatly enjoyed doing....When Malawi underwent a process of constitutional reform in the early 1990s, when they’d eventually managed to get rid of Hastings Banda [49] who had led Malawi since independence. They had a conference and threw together a constitution largely based on the South African constitution that just wouldn’t work...and the choice fell upon me to go out as...‘technical adviser’ to the Law Commission. [This] was a very diverse [body]. It didn’t have only lawyers on it, but [also] representatives of civic society...we had endless meetings going through the constitution article by article. [When] sessions ended, I would go off and draft the necessary changes.... in accordance with our recommendations...

"Under the Law Commission I had two trips to Malawi and I got to know most of the judges....I became quite fascinated by Malawi, and eventually produced a report of the Law Commission on the constitution with two draft bills essentially establishing what needed to be done to make the constitution work better...[The work] was initially funded by the EU....[but] subsequently the Malawian government paid for me to go out....it meant that they wanted my advice...[which] wasn’t being foisted on them through an aid agency. I did give a lot of advice for the Malawian government with the assistance of the Solicitor General, a man called Steve Matenje [50]..... [It was all] something that I enjoyed doing. I’m a firm believer in the best way of reforming administrative law is to teach your civil servants the principles of good decision-making....and the Malawi government  arranged for me to go out on three or four occasions to conduct courses on "law and the civil servant",and "judicial review and the civil servant". It was an annual event, [when] all the permanent secretaries in their departments would gather together in a resort down beside Lake Malawi...

Then there was a change of government in Malawi and they decided that the president’s brother should be their Constitutional Adviser and I haven’t been to Malawi since." (Q51).

Christopher also offered his services on constitutional matters to inter alia India, and the Minister of Justice and Constitutional Development in Sri Lanka. The latter, as we spoke at his home in Hertfordshire, was undergoing a fresh constitutional crisis. Perhaps this a good example of political events overtaking the "best laid plans...".

"The start is again through the good offices of Bill Wade. He was approached by the Sri Lankan government and got me in as his junior. This was while the war with the Tamils Tigers in the north was raging, and what the Sri Lankan government wanted was to give substantial autonomy to the rebellious north and eastern parts of Sri Lanka in the hope that that would have been sufficient to bring peace to those parts of Sri Lanka. But as is often the case with constitutional issues the problem was that the legislature was in the hands of the opposition who [were] determined not to cooperate in this scheme. 

So the government wanted to do good [but] was prevented from doing so by the fact that in its wisdom the Sri Lankan people had voted and ended up with a situation where there was effectively deadlock with one party controlling the legislature and the other party controlling the executive. What we were trying to do was to devise ways in which the executive could bring about substantial autonomy in the provinces without having to legislate on the subject. They took our suggestion..[but] the tides of politics swept it all away and it didn’t happen.... Bill Wade then dropped out of the picture and left me to advise the Sri Lankans...I gave quite a lot of advice on how you could organise the government effectively to give substantial autonomy to the disaffected provinces [but] none of my ideas were implemented in this case either.

Now what’s happened in Sri Lanka seems to me to be that [the problem with] the Rajapaksa regime is corruption more than anything else.  Once peace had been achieved in the dispute with the north and the east [it] was a wonderful opportunity for Sri Lanka, but it looks as if through corruption they’ve rather squandered it. They now face huge economic problems which is very sad." (Q67).

Reconciliation in South Africa

Of significance is Christopher’s recollections of a pivotal event in South Africa’s recent political history, after majority rule in 1994. A seminal proceeding in this transition was the Truth and Reconciliation Commission which was the brainchild of the indefatigable Archbishop Desmond Tutu [51]. I asked about Christopher’s involvement with this and his reply throws light on his documented disagreements with David Dyzenhaus on legal issues pertaining thereto. Again, for the public record, it is worth citing his comments.

When asked about the efficacy of the Commission as a whole, he said "I’d give it a middling second class mark. Its task was incredibly difficult....It did succeed in that it encouraged some people to come forward and admit to what they had done and they then got immunity from prosecution....it [also] brought these terrible deeds out into the open....one knew what had happened, and at its best reconciled the victims with the perpetrators. That I think was a noble purpose and was in part successful." (Q66).

On the constitutional issues, which of course were closely interwoven with social and political aspects, he said  "My own involvement came about because I thought the Commission was in danger of having the wool pulled over its eyes....[T]he South African judges were invited to come and give evidence to the Truth and Reconciliation Commission and they refused to turn up. Instead they senta written document [which] I think, [was] no good at all because it simply parroted the defence that the South African judges had made all through the apartheid years that there was nothing they could do about ameliorating the condition of the victims of apartheid or anything of that sort....They were just obeying the law, the law that they had sworn to uphold..[T]hey put forward this tale to the Truth and Reconciliation Commission, say[ing] that they could have done nothing, that everything had been specified clearly in the law and they had no choice but to apply it.

[T]he whole point of my [PhD] thesis was to show that in fact the judges did have a choice and on the legal sources and the authorities in front of them there were things that they could have done.  Not as much as some people like David Dyzenhaus [52] would like them to have done, but they certainly weren’t completely impotent in the way that the evidence suggested. So in my evidence which I gave unsolicited, I set out the reasons why I thought this was an inadequate account of what had actually happened in the past...[However] there is I think a reasonable case to be made for the judges not turning up in person to the Truth and Reconciliation Commission.

I think they should have offered a better defence or should have said, ‘Now we see the error of our ways and we recognise that we were in part tainted with the charge that we collaborated with apartheid.’...[but] I think that they should have done it in writing to the Commission rather than turning up in person.... because the proceedings....as I understand it, were bad enough already.  If [the judges] had been dragged before the Truth and Reconciliation Commission, it would have split the judiciary into those who were for, those who were against, and it would have subjected the wrongdoers or the perceived wrongdoers  to ignominious criticism in front of the public in the Commission. This would have much weakened the judiciary....[T]his has been recognised by the South African courts themselves, the Constitutional Court and elsewhere, that there was merit in preserving a formally independent judiciary in South Africa which was what happened.

It was never the case that politicians order[ed] judges how to decide cases....[but] judges were formally independent and I think in the tortured political circumstances of South Africa, and without suggesting for one moment there wasn’t a tremendous amount wrong with every part of the South African legal system, that was an achievement worth noting. I think David Dyzenhaus came round to agree with me in the end, that nothing would have been gained if the judges had turned out to have brickbats thrown at them before the Truth and Reconciliation Commission." (Q66).

Contributions to UK Administrative Law

Following my original proposition of analogues to the Jewish diaspora in Jurists Uprooted and of their bringing Civil Law views into English law, South African legalists who had left for political reasons during the National Party’s administration also had to make the jump from their Roman-Dutch roots, to UK Common Law. In the process they have left a considerable mark on the latter - Sir Bob Hepple is an example that springs to mind. In his case, Christopher Forsyth has made invaluable contributions to UK administrative law, in particular his analysis of judicial review as a burgeoning phenomenon.

He first became interested in the topic of judicial review in 1975 while undertaking his LLB, and later gained invaluable experience while preparing materials as a pupil of John Laws, who was then the Treasury Devil. He also remarked that in his consultancies in India (Q61) and Hong Kong (Q68), he had given advice on strengthening administrative law in these ex-British jurisdictions to strengthen the culture of judicial review.

It was very interesting to hear Professor Forsyth’s views on the progressive and inexorable increase in the number of cases that come up for judicial review over the years during which he has taken an interest in the subject: from a few thousand per annum in the 1980s to possibly 50,000 in the early 2020s (Q80). In his opinion this has been inevitable,  and to a large extent reflects the increasing number of disappointed litigants in immigration cases who turn to judicial review as a last resort, as well as the opportunities in the Human Rights Act (1998) for a new raft of categories on which the Government can be challenged. Nevertheless, the vast bulk were such minor cases (although very important to the individuals involved), and those involving major constitutional issues (such as the two Miller[53] cases re Brexit) remained very small (Q81).

Interestingly, when asked about how he viewed his contributions to English law, Professor Forsyth mused on areas where he had "been influential" and suggested that while he has had some  "influence in UK law...on defending orthodox administrative law in the UK....it’s not nearly as great" as his contribution to South African private international law.

The fact that we have a sovereign parliament has to mean something for our administrative law and we can’t have a situation when talking about the theoreticals underlying the justification for judicial review [there is] nothing to say on how judicial review cases are actually decided. To the extent that I have reminded people that the orthodox principles of judicial review are there for a reason, they can’t just be discarded because it seems inconvenient, I think that’s something I take pleasure in..." (Q71).

Without a doubt, the heart of his legacy in UK administrative law lies in his 28 years association with, and updating of, the classic text begun in 1961 by Professor Bill Wade - Administrative Law. Christopher joined Wade in the venture in 1994 (7th Edit), and has documented the evolution of the law therein ever since[54]. He did the 9th-11th editions on his own since Wade died in 2004. The latest edition of this text (11th) appeared in 2014, written while he was Professor of Public Law and Private International Law[55]. It has been cited widely, as have earlier editions, and I relate an amusing anecdote on which he dryly commented.

"I was taken to the judicial review court[56] in Madras and saw the counsel argue their cases and using a copy of Wade and Forsyth ‘Administrative Law’ standing open on the judge’s desk and that was a fascinating experience." And he added in a matter of fact way  "but it’s part of the worldwide influence of that book." (Q61).

He summed up his views on the crucial topic of judicial review as: "I hold to the view that the basis of judicial review is essentially the ultra vires doctrine -  that the law lays down the limits to the powers of the individual civil servant or minister, and judicial review is just the process whereby you see whether those powers have been lawfully exercised or not.  This has been a great cause of debate between those who favour the ultra vires doctrine in one or other of its forms and those who would rather say that it’s the common law that justifies judicial review.  That debate still rages on.  Really it’s myself and Mark Elliott [57] versus Paul Craig [58] mostly." (Q49).

Christopher Forsyth has written numerous journal articles on this topic going back to the 1980s, a time before he gained his lectureship in 1988. I select two for mention. In his 1996 paper "Of Fig Leaves and Fairy Tales: the Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review"[59] his argument is that "when statutory power is conferred, everything that is done on reliance of that grant of power is actually either done within the scope of the power (and is therefore legal) or outside the scope of the power (and therefore unlawful)" [60].

He gave a very clear explanation of his position on this topic in our conversation and explained (Q83) that for most of the 20th Century the ultra vires doctrine was unchallenged as a basis for judicial review and judges were able to say that they get their authority "from the law". But this could no longer apply when judicial review was more recently extended to the prerogative and non-statutory powers, and his 1996 paper addressed this dilemma.

He reasoned that if you abandon the ultra vires doctrine you abandon the sovereignty of Parliament. Mark Elliot had also come to the same conclusions around this time. As a consequence, they collaborated and produced their Forsyth & Elliot 2003 paper [61], which propounded the notion that there has to be some relationship between legislative intention and judicial review, and this formed the basis of a modified ultra vires theory.

As Professor Forsyth put it "I always try to write articles that solve problems not make problems" (Q83) - a modest self-proclaimed eulogy.

His conclusion that his work in UK administrative law was of less importance than his South African studies is open to debate.

Retirement

Looking back on his career, I asked him which items he thought were his most significant contributions to the two jurisdictions in which he had worked. Apropos South Africa, he said that his advocacy of human rights being given the protection of the law was then a radical idea, which has now become orthodoxy - perhaps helped by his work. And secondly his book on Private International Law which was the first Roman-Dutch text on the subject for "hundreds of years" (Q86), and is still widely cited in southern Africa.

As for the UK - his life changed when Bill Wade invited him to collaborate on the next (1994) 7th edition of his book. Its updating has dominated his work ever since, and modestly he said it had been a wonderful journey from which he has greatly benefited from Wade’s reputation (Q86).

Asked about his greatest pleasures, he said that his being part of the Cambridge system. He put it thus. "...I have been delighted by and therefore I have got most pleasure out of the part that I have played in the government of Cambridge...as a Proctor, [and] as a University Advocate on the Board of Scrutiny. Overall [this] seemed to me to be what makes Cambridge different from other universities. That would be what I think gave me the greatest pleasure." Q71

Reflections on his retirement were tinged with regret and perhaps sadness. "I feel that in some ways I have been very fortunate, but otherwise I’m unfortunate in that as soon as I retired I started getting ill. I had thought of having some golden years to do what I wanted to in retirement.  I now think I won’t have that... [Nevertheless] with the assistance of others I’ve brought to conclusion the 12th edition of Wade and Forsyth on ‘Administrative Law’ that will be appearing in six months’ time or so.  Some of my visiting professorship work at Hong Kong was done while I was technically retired from Cambridge, but mostly I’ve found myself being far too busy [with] things that I have to do which is a great pity." (Q70)

Finally, he confided that early on in his career, he acquired a lodestone belief that guided him throughout his endeavours, namely that it was possible to have a "role of influence without seeking power", and that he had found this as a "reasonable way to spend your life", and that to have done this in two jurisdictions was "quite pleasing to me". (Q86)

Professor Forsyth is an immensely courteous, quietly spoken, and modest scholar, who,  along with his wife, Gillian Charles, offered me kind hospitality in their home during my visits. It was a great pleasure interviewing him for ESA in a beautiful rural setting with a backdrop of birdsong. The decor of their converted farm house in subtle ways reflected a South African ethos translated onto the top of the chalk escarpment in Hertfordshire overlooking the flat lands of Cambridgeshire far away to the north.

 

[1] Sir Bob Hepple (1934-2015), Emeritus Professor of Law Cambridge (1995-2001), Master of Clare College 1993-2003. Professor of English Law UCL (1982-93).

[2] David Dyzenhaus, (b. 1957- ) Professor of Law, University of Toronto (1998-), Goodhart Visiting Professor (2014-15).

[3] Colin Conyngham Turpin (1928-2019), Clare College, Emeritus Reader in Public Law (1992-95).

[4] Raymond Wacks, Emeritus Professor of Law and Legal Theory at the University of Hong Kong, Head of the Department of Law (1986-93), Professor of Public Law and Head of the Department of Public Law University of Natal in Durban.

[5] Christopher John Robert Dugard (b. 1936 - ), Professor of Public International Law, University of Leiden (1998 -), Professor of Law, University of Witwatersrand (1975-90), Goodhart Professor, Cambridge (1995-96).

[6] Ben-Zion Beinart, (1914–1979), Professor of law Rhodes University (194549), WP Shreiner Professor UCT (1950-74), Barber Professor of Jurisprudence Birmingham (1975-79).

[7] Barzillai (Blaar) Coetzee (1914-1974).

[8] Exton Burchell (1917-1982) taught at Wits (1947-54), Professor of Law Pietermaritzburg (1954-?).

[10] 1953-68. Founded on 9 May 1953 in Cape Town by Margaret Ballinger (South African MP), Alan Paton (novelist), Leo Marquard, Dr Oscar Wolheim, Leslie Rubin (South African Senator), Peter Brown, H. Selby Msimang, Leo Kuper, and Hilda Kuper.

[11] Dhlamini case

[12] Lex causae case.

[13] 1981. Private International Law,  Juta & Co. (2nd Ed 1990, 3rd Ed 1996. 4th

 Ed 2003, 5th Ed 2008).

[14] Ellison Kahn, (1921-2007), Professor Law, University of Witwatersrand (1954-75).

[15]  It admitted women in 1979.

[16] Otto Kahn-Freund (1900-1979), b. Frankfurt-am-Main. Emigrated to England 1933. Professor of Law, LSE (1951-64). Goodhart Professor (1975-75), Trinity Hall.

[17] Kurt Lipstein (1909-2006), Professor of Comparative Law, Cambridge (1973-76).

[18]  Reginald Walter Michael (Mickey) Dias,  (1921-2009). Lecturer in Law, Jurisprudence & Tort (1951-82).

[19] In Danger for their Talents, Juta, 1985.

[20] Ian Farlam SC (b.1939-), retired South African judge, Cape Provincial Division of the High Court (2000-09).

[21] 1980. Human Rights and Ideology, SALJ 97, 103.

[22] Sir Karl Raimund Popper, FRS FBA (1902-94), Austrian-British philosopher and  academic. Professor of Logic & Scientific Method LSE (1949-69). Popper rejected the classical inductivist views on the scientific method in favour of empirical falsification. In politics he defended liberal democracy.

[23] 1981, SALJ, 98, 218.

[25] His thesis was later published as: In Danger for their Talents: A study of the Appellate Division of the Supreme Court of South Africa from 1950, 1985, Juta & Co, 

[26]  Clive Parry (1917-1982), Professor of International Law Cambridge (1969-82), Chairman, Library Committee (19xx-1982), Downing College (1946-82).

[27] Sir Henry William Rawson Wade, (1918-2004), Rous Ball Professor of English Law (1978-82), Master of Gonville & Caius (1976-88).

[28]  Sir John Grant McKenzie Laws (1945 - 2020), Lord Justice of Appeal (1999-2012). Goodhart Professor (2016-17)

[29] He held this role 1984-92.

[30] M was sent back, but after the HoL ruling could not be found.  http://www.bailii.org/uk/cases/UKHL/1993/5.html

[31] Kenneth Wilfred Baker, Baron Baker of Dorking, (b. 1934-).

[32]  See the account in Lesley Dingle, "The Squire Law Library at Cambridge: historical development and current status of the international law collections, 2017, 17 LIM 78-91. Kurt Lipstein was the only Eminent Scholar who worked on all three sites.

[33] Sir Norman Robert Foster, (1935-), architect.

[34] Sir David Li Kwok-po OBE (b. 1939-) Hong Kong banker and politician.   Executive Chairman of the Bank of East Asia, a former member of the Legislative Council of Hong Kong and the Executive Council of Hong Kong.

[35] Legislative Council of the Hong Kong Special Administrative Region (LegCo). Unicameral legislature of Hong Kong under China's "one country, two systems" constitutional arrangement.

[36] Sir David Glyndwr Tudor Williams (1930-2009), Rouse Ball Professor of English Law (1983-92), Vice-Chancellor, Cambridge University (1989-96).

[37] Alison Young, Sir David Williams Professor of Public Law (2018-). Robinson College. Previously Professor of Public Law and Fellow of Hertford College, Oxford.

[38] Anthony David Yates (b. 1946-), Warden of Robinson College (2001-21) Professor of Law University of Essex (1979-87).

[39] With Mark Elliot in the 2000 Asia Pacific Law Review, 53. And Rebecca Williams in the 2002 Asia Pacific Law Review 238.

[40] When a new constitution for Hong Kong was negotiated between Britain and Communist China, it led to a treaty that was supposed to last for 50 years.

[41] Swati Jhaveri, BA BCivil Law Oxford, National University of Singapore, she was previously at Chinese University of Hong Kong.

[42] Professor Michael Ramsden, Director of the Legal Research Postgraduate Programme Chinese University of Hong Kong. Barrister of Lincoln’s Inn.

[43] Anne Scully-Johnson, Ekstern Lektor Faculty of Law, Copenhagen University. Taught law in Hong Kong for 13 yrs.

[44] Michael Howard, (b. 1941-), Home Secretary (1993-97).

[45] David Blunkett,  (b. 1947-), Home Secretary (2001-04).

[46] Part-time judge

[47] Ato Quayson (b. 1961-), Ghanaian Professor of English, Stanford University, PhD Cambridge University (1995), Pembroke College.

[48] Formerly Nyasaland - gained full independence 1964.

[49] Hastings Kamuzu Banda, (?1898-1997), Prime Minister and later president of Nyasaland/Malawi from (1964-94).

[50] Steve Dick Tennyson Matenje (b. 1956-), Solicitor General and Secretary of Justice of Malawi, Permanent Representative to UN (2006- ), Ambassador to United States.

[51] Desmond Mpilo Tutu (1931-2021), South African social rights activist, Anglican Archbishop Emeritus of Cape Town.

[52] See Dyzenhaus’s comments in his first ESA interview at questions 44 & 45.

[53] [2017] UKSC 5

[54] We have letter in the archive from Wade to Christopher dated 1985 which shows the esteem in which Wade held his views on Administrative Law.

[55] He mentioned in the ESA interviews that the 12th Edition will appear in 2022.

[56] By C. Ramakrishna (1929-2021), Senior Advocate at the Madras High Court, Christ’s College Cambridge in Comparative, Constitutional, and Administrative Law.

[57] Mark Elliott, Professor of Public Law, Legal Adviser to the House of Lords Select Committee on the Constitution (2015-19).

[58] Paul Philip Craig, FBA (b. 1951-), Professor of English Law of Oxford (1998-2019).

[59]  CLJ, 122 at 133-4.

[60] Quoting Elliot & Varuhas, Administrative Law: Text & Materials 5th ed 2017, OUP at page 18.

[61] The Legitimacy of Judicial Review"Public Law 286 at 288-9.