Editorial: law and the Constitution: A Judge's Warning
| Date | 01 September 1975 |
| Published date | 01 September 1975 |
| DOI | http://doi.org/10.1111/j.1467-9299.1975.tb00219.x |
| Author | NEVIL JOHNSON |
Editorial
:
law
and
the
Constitution
:
A
Judge’s
Warning
It has
for
a
long time been thought to be almost self-evident that we in
Britain
do
not need to be worried about the maintenance
of
basic liberties,
that their security is somehow
or
other guaranteed both by the political
habits of
our
society and by the operation of the common law, and that we
have, therefore, no need to give formal recognition to ‘the rights of man
and the citizen’. But amongst those who attend seriously to these matters,
there is now
a
growing number who question this complacency. We can no
longer be sure that basic rights as they are understood in a liberal society
are all that secure. Their protection and enjoyment is threatened by
powerful and often intolerant social interests
;
the political conventions
shaping our system of government have become blurred, uncertain and
increasingly opportunist; and above all, we have tolerated the spread of a
providential view
of
the role of government (to echo de Tocqueville) which
has resulted in an expansion of public powers to such an extent that private
responsibility is systematically subverted, whilst effective public action is
paradoxically frustrated by reason of the very extravagance of the claims
advanced on behalf of the public authority. We have forgotten that
accumulation
of
po~
ers in the hands of government is not merely dangerous
:
it risks being ultimately self-defeating and ineffective.
This is the context in which we need to set Sir Leslie Scarman’s Hamlyn
Lectures,
EngLishLaw
-
TheNew Dimension.
*
To
my mind this work represents
the most important contribution made by a judge speaking in a personal
capacity to the consideration
of
the place of law in our society since
Hewart’s
The New Despotism.
But it cuts far deeper than Hewart, in part
because the analysis is more cogent, in part because Sir Leslie is free from
the instinctive conservatism of Lord Hewart. The latter sought to alert his
countrymen to the alleged encroachments of faceless bureaucrats and
Ministers acquiring and using powers by stealth, and undoubtedly he had
a significant influence in
so
doing. But his remedies were backward-
looking. Apart from certain procedural improvements in the conferment
of
powers, he wanted to stem the tide, to maintain something like the
conditions of the ‘negative state’ in which the common law and its
procedures were strong enough to protect the individual against inter-
ference and direction. Scarman appreciates that this approach no longer
*Stevens,
1975.
E3.75
(cloth),
E1.50
(paper).
22
I
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