Underrated: A.P. Herbert

A great backbencher who mocked officialdom and championed ordinary people inside and outside the House

Daniel Johnson

Alan Herbert is best remembered as an exceedingly English man of letters whose anarchic sense of humour enlivened the early days of television. Beginning in 1967, the BBC made three series of the courtroom comedy Misleading Cases, based on his satirical legal reports, originally published in Punch. Collected in book form with the title Uncommon Law, these courtroom dramas remain classics of the generally bone-dry literature of the law. In the TV series Roy Dotrice played Albert Haddock, Herbert’s vexing if not vexatious litigant, while Alistair Sim was the long-suffering judge, Mr Justice Swallow.

Probably the best-known case remains “The Negotiable Cow”. Haddock infuriates an importunate taxman by writing a cheque on the side of a cow: “Pay the Collector of Taxes, who is no gentleman, or Order, the sum of fifty-seven pounds £57/0/0 (and may he rot!).” Haddock stubbornly insists that there is nothing in law to prevent him from paying his income tax by this method. The judge asks: “Was the cow crossed?” “No, your worship,” replies the Public Prosecutor, Sir Joshua Hoot KC. “It was an open cow.” As the Revenue refuses to accept the bovine cheque, Haddock refuses to pay, meanwhile making a mockery of the taxman: “There is no law against ridiculing the income tax.” Despite his mischievous motive, the judge finds in his favour. The case of “Board of Inland Revenue v. Haddock” has been cited in judicial decisions on both sides of the Atlantic; indeed, the Memphis Press-Scimitar published an article that was evidently oblivious of the fictitious nature of the case.

Yet Sir Alan, as he later became, was capable of far more than just lampooning the law. The lawyers had only interpreted the law; the point, for Herbert, was to change it. During the First World War, he endured nightmarish campaigns about which he wrote a searing memoir, The Secret War, with a preface by Winston Churchill. His wartime experience gave him a lifelong suspicion of authority. In 1934 he brought a case against the Kitchen Committee of the House of Commons for selling liquor without a licence. Though he lost the case, Herbert revealed that the limits of parliamentary privilege were so ill-defined that neither House was subject to statute law at all. The failure of the politicians to reform themselves gave Herbert the impetus to stand for Parliament. His election address was characteristically modest: “Agriculture: I know nothing about agriculture.”

In 1935, with the help of his agent, Frank Pakenham (later Lord Longford), he was elected MP for one of the two university seats that Oxford, like Cambridge, returned until they were abolished in 1950. Herbert sat as an Independent, enabling him to promote cross-party reforms that the whips saw as too hot to handle, including betting, libel, licensing, and a Spring (Arrangements) Bill written in verse. One of his campaigns was against the Entertainments Duty, which he saw as a tax on fun. Herbert saw the backbencher’s role as not only holding the government to account, but making a difference to the lives of ordinary people. In just 15 years as an MP, he did exactly that.

No sooner had Herbert entered the Commons than his maiden speech promised to introduce a divorce reform Bill, which outraged pious churchmen. Churchill gave him the highest praise for which any backbencher could hope: “Call that a maiden speech? It was a brazen hussy of a speech. Never did such a painted lady of a speech parade itself before a modest Parliament.” Sure enough, Herbert’s Matrimonial Causes Bill 1937 was eventually passed, removing the requirement to prove adultery. It was this need to find an often non-existent adulterer that had led to the dubious practice of bribing “co-respondents” (possibly wearing flashy “co-respondent shoes”) to allow their names to be cited in divorce proceedings. Herbert wasn’t in favour of divorce, but he wanted to remove the element of hypocrisy.

In later life, Herbert retired to Hammersmith. But he made one more great contribution to public life: one of the first pamphlets to be published by the first free-market think tank in the world, the Institute of Economic Affairs. Published in 1960, Anything But Action?, remains a fresh and brilliant dissection of British officialdom’s love of boards and committees: “A government department appointing a Royal Commission is like a dog burying a bone, except that the dog does eventually return to the bone.” Herbert showed with wit, precision and by numerous examples that governments wasted the time of countless unpaid worthies on these committees, but rarely if ever acted on their recommendations. In June and July, he noted, more were appointed than at any other time: “Can it be that in those sometimes sultry months, when holiday thoughts are rightly in the mind of the hard-worked civil servant, he is more than ever tempted to unload some of his problems on the amateurs outside? Or is it just my nasty mind?” As the present government lurches from one inquiry to another, it would be no bad thing if ministers took a fresh look at A.P. Herbert’s Hobart Paper and resisted the temptation to bury the bone yet again.

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