REVIEWS
| Date | 01 September 1975 |
| DOI | http://doi.org/10.1111/j.1468-2230.1975.tb01432.x |
| Published date | 01 September 1975 |
REVIEWS
ENGLISH
LAW-THE
NEW
DIMENSION.
By
SIR
LESLIE SCARMAN.
The
Hamlyn Lectures,
26th
Series.
1974.
[London
:
Stevens
&
Sons.
88
pp.
X1.50.1
TIiCRE
can have been few law lectures which have been reported with front-
page headlines in the national newspapers. There can have been even fewer
law books whose publication has been marked with a leading article
in
The
Times.
Such, however, was the acclaim which greeted the delivery and publica-
tion
of
the 26th series
of
Hamlyn Lectures by Sir Leslie Scarman in December
1974 and the following February respectively.
What occasioned this public interest? Undoubtedly it was due to a single
factor, that a member of the English judiciary had publicly advocated a new
constitutional settlement for Britain in which the enactment
of
a Bill
of
Rights
should figure prominently. In the author's words,
".
. . there must be a
constitutional restraint placed upon the legislative power which is designed to
protect the individual citizen from instant legislation, conceived in fear
or
prejudice and enacted in breach
of
human rights
"
(p. 20). Certainly, the notion
that civil liberties in this country might be better protected under a Bill
of
Rights is not an original one. The idea enjoyed a reasonably favourable press
from 1969 to 1971. Salmon L.J. (as he then was) in the Haldane Memorial
Lecture for 1970 said that the idea deserved careful consideration. The previous
year Mr. Quintin
Hogg
(as he then was) supported the idea in a Conservative
party publication, and has returned to the theme in
a
series
of
articles recently
published in The Times. In 1971 Messrs. Silkin and Archer (the Law Officers
of
the Crown, at the time
of
writing) presented to Parliament
a
Protection
of
Human
Rights
Bill, which did not get beyond
a
second reading. The idea, in
short, seems exclusively associated with Opposition. Certainly, no incumbent
government has attempted the diminution
of
parliamentary sovereignty that its
execution would entail.
Several detailed points made by the author deserve closer examination. First,
at pp.
12-13,
he suggests that by virtue
of
the European Communities Act 1972
the European Convention on Human Rights may already be part
of
English
law. Certainly the importance
of
the Convention in the aftermath
of
the Colder
decision should not
be
minimised. And arguably Articles
1
and
13
of the Con-
vention place the High Contracting Parties under a duty to enact the Conven-
tion into their municipal law. But does the author mean that the European
Convention may have already found its way into English law via the
"
general
principles of law" which the Luxembourg
Court
is
allowed to employ as a
source
of
law? See the opinion of that Court in Firma
J.
Nold
K.G.
v.
E.E.C.
Commission
[I
9741 C.M.L.R.
338.
Surely, further explanation is called for.
Secondly, in referring to the treatment
of
internees in Northern Ireland, he
asks
(at p.
IS),
"
Do
you think that the deeply disturbing practice
of
interroga-
tion
to
which resort was had in Northern Ireland would have occurred. had
British law possessed at the time a fully developed code
of
fundamental human
rights? And,
if
despite the existence
of
such a code men had been subjected
to
the
oppressive and degrading interrogation techniques described in the Compton
Report, would the United Kingdom now be standing at the bar
of
European
justice, trying to explain that, though
our
law says nothing, yet it does provide
a sufficient remedy?
"
But this surely
is
to underrate the protective force
of
the common law.
Witness the cogent argument put by Lord Gardiner in the committee on
interrogation techniques on which he sat with Lord Parker of Waddington and
Mr.
J. BoydCarpenter.
"
.
.
.
Where
a
man
is
in lawful custody it is lawful to
do
anything which is reasonably necessary to keep him in custody but it does
not further
or
otherwise make lawful an assault. Forcibly
to
hood a man's head
589
590
THE
MODERN
LAW
REVlhW
[Vol.
38
and keep him hooded against his will and handcuff him
if
he tries
to
remove it,
as
in one
of
the cases in question, is an assault and both a tort and a crime.
. . .”
Indeed one feels throughout that the author underestimates the efficacy
of
the
tools at the disposal of the judiciary in the protection
of
civil liberties. The
concepts of public policy. abuse
of
administrative discretion and presumptions
in the construction
of
statutes, if wielded energetically, may achieve much the
same results as the direct judicial review
of
the constitutionality
of
legislation.
Instancing
‘‘
the inability of the courts to correct the retrospective effect
of
the
Immigration Act
1971,”
the author argues,
‘’
It is the helplessness of the law in
face
of
the legislative sovereignty of Parliament which makes it difficult for the
legal system
to
accommodate the concept
of
fundamental and inviolable human
rights” (p.
IS).
That the courts, however, were not totally defenceless in the
face
of
the Immigration Act
1971
was clearly demonstrated by the decision
of
the House of Lords in
Waddirigroit
v.
Miah
[I9741
2
All
E.R.
377.
Even
if
one accepts the case for a new constitutional settlement, does it
necessarily follow that the ordinary courts should possess exclusive jurisdiction
over these matters? Sir Leslie himself is in no doubt.
”
1
would hope that a
supreme court of the United Kingdom would
be
established (we already have
its embryo in the judicial committees
of
the House
of
Lords and Privy
Council).
.
.
.*’
But here it is noticeable that the Silkin-Archer Protection
of
Human Rights Bill placed the execution of its provisions in a Commission
of
Human Rights, which would report to Parliament on human rights grievances
in
much the same way as the Ombudsman does at present. Moreover, clause
14
of that Bill provided that, “rllle determinations and conclusions
of
the Com-
mission shall not be open to challenge in any court
of
law.
.
.
.”
The attitude
of
mind reflected in this clause stems, no doubt, from a feeling
that the record
of
the courts in construing Bills
of
Rights has been rather
ambivalent. The Canadian courts took ten years to inject life into the Diefen-
baker Bill by handing down the
Drybones
decision, and their later decisions in
Lave11
and
Burnshine
make it doubtful whether that attitude will be sustained.
The record
of
the Judicial Committee of the Privy Council ranges from the
decisions in the
1930s
which invalidated the Canadian New Deal legislation
to
its liberal decisions in the more recent cases
of
Liyanage
v.
R.
and
Akar
V.
Aft.-Gen.
of
Sierra Leone.
Moreover, the track-record
of
the English courts in
regard to sections
209
and
210
of the Companies Act
1948,
for
example, sug-
gests that they show nothing but considerable deference to majority decisions
reached by people (whether businessmen
or
politicians) who are presumed to
know their own business best.
This review, in addition to the press ooverage given to the lectures, may have
created the impression that the book is concerned exclusively with the desir-
ability
of
a constitutional settlement and a Bill
of
Rights. Rather, the theme is
whether the common law is capable of responding to a series
of
challenges from
contemporary society-The Human Rights Movement, the Common Market,
the Social Challenge, the Challenge
of
the Environment, and the Industrial and
Regional Challenges. As such the book covers much (one feels, at times, too
much) in the course
of
88
pages, ranging from the classification of the national
insurance scheme to the problems
of
regional devolution. How are these
challenges to
be
confronted? Does the common law
offer
any answer or, as the
author asks, has it reached the end of the road? Perhaps Alexander Hamilton
long ago foresaw the end of that mad when, in the
78th
Federalist
Paper,
he
described the judiciary as the
‘‘
least dangerous branch
”
of government.
To
return finally to the human rights theme-one’s first reaction was that
Sir Leslie had been unfortunate in the timing of his lectures, coming as they
did
so
closely after the Birmingham bombings and the enactment of the
Prevention
of
Terrorism (Temporary Provisions) Act
1974.
It
is
at these times,
however, that civil liberties are
most
at risk, and the cautionary note struck by
these lectures has succeeded admirably in dispelling, in the author’s words,
’‘
any lingering sense of complacency in my audience.”
J. JACONELLI.
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