Disagreeing with Scarman

Lord Hailsham

Apart from Lord Denning, Sir Leslie Scarman* is probably the most politically articulate of our full-time judiciary, and as the first Chairman of the Law Commission and now of the Council of Legal Education, his influence on the development of English law has already extended far beyond the field of judicial decision. The object of the Hamlyn lectures as defined by the bequest of the late Emma Hamlyn of Torquay now seems sadly dated. She left the residue of her estate to improve the knowledge of comparative law so that "the Common people of the

* English law — The New Dimension Sir Leslie Scarman (The Hamlyn Lectures, Twenty-sixth Series; Stevens .E1.50)

United Kingdom may realise the privileges which in law and custom they enjoy in comparison with other European peoples."

The value and interest of the latest series are not in the least diminished by the fact that Sir Leslie Scarman's contribution is hardly likely to achieve either part of the pious founder's prescription. To the "Common people of the United Kingdom," his scholarly and persuasive arguments are likely to prove caviar to the general. Moreover his central thesis is hardly likely to achieve the purpose of leading his readers to a complacent contemplation of the superiority of English law and custom over the systems enjoyed by our neighbours.

For Sir Leslie's thesis amounts to

nothing less than the proposition that the basic theory of our Constitution, namely the unchallengeability of Acts of Parliament by the Courts of Law, is more or less worn out. Sir Leslie bases his argument on an analysis of the implications of a variety of new influences on the traditional system of lawyers' law. In order of contemporary significance he lists the impact of EEC law and the Luxembourg Court, the newduelopments of Social Security legisration and family law, the growth of Scottish and Welsh nationalism and other demands for regional autonomy, and the new requirements of the environment.

As I have indicated elsewhere, in so far as these factors, or some of them, lead to a demand for some or all of the advantages of a so called "written" constitution, 1 have considerable sympathy with them. The trouble is that Sir Leslie's analysis seems to me inadequate on at least three important respects.

In the first place, he looks primarily to the legal profession, by which I understand him to include both the judiciary, the two branches of practising lawyers and the teachers of law, to produce his remedy. "The answer," he says, "lies with the legal profession." I do not think it does. Despite the accuracy of Sir Leslie's examination of earlier legal traditions as exemplified by Coke and Blackstone, and by such statutes as Magna Carta, the Bill of Rights and the Acts of Settlement and Union, I do not think it is either constitutionally appropriate or politcally acceptable for the judiciary to assume new powers on an adequate scale to provide any remedy by themselves to the underlying malaise in society. No doubt they have an important contribution to make.

No doubt there are, both within. the judiciary and among solicitors, barristers and law teachers, those who reach out towards an American approach to juridical problems. But this approach was the product of the inability of the American

constitution to yield legislation on an adequate scale to meet the needs of society. A lawyer-controlled society is likely to be as unaccept able to the population of these islands as the present elected dictatorship by the temporary majority in the House of Commons. Secondly, I would think that Sir Leslie's premises do not yield his conclusion. 1 think he greatly exaggerate's the implications of the EEC treaty and regulations within any measurable period Of time on the general structure of English law. Not only are their scope limited by the nature of the Community, but actual experience affords no indication at all that regulations by the Community have very much implication for judge-made law in this country. No doubt they are of great importance in their limited sphere, but, apart from the treaty itself, their actual impact is, as is shown by the reports of Lords' Select Committee, mainly in the field of Statute Law (though minimally so) ancl,Aabmusually, of Ministerial regulation. No doubt, in a growing number of cases, judges have to give direct effect to Community law here as elsewhere in the community, but in so doing they are in effect only substituting one source of statutory law for another, with the additional limitation that they are bound to prefer the interpretations of the Luxembourg Court to their own ideas, and are therefore not completely free to develop a new tradition of authority applicable to English law as a whole.

Thirdly, I doubt whether either Parliament or the public is prepared • to go very far with Sir Leslie in applying a wider degree of purely judicial control than at present exists in the fields now occupied by the Ombudsman, the Social Secuity Commissioners, the Industrial Relations. Commission, and the whole field of tribunals. Whatever the defects of our present constitution, it has at least the merits of flexibility, and judicial control of administrative activities is apt to lead to a race of political judges exercising control without applying acceptable administrative and political standards. The criteria which judges apply to evidence, and the degree of certainly required to yield operative judicial decisions, are very different from those on which Ministers are accustomed and, indeed compelled by the necessities and pressures of events and by public opinion to act. Control by the Courts, however enlightened, proves in practice unduly hampering in matters requring political action. No doubt there are cases where it inhibits arbitrary and potentially oppres sive decisions by the executive. But the operation of judicial control of policy and administration is very apt to be capricious, to create a timid and over-cautious executive, and a dissatisfied public and Parliamentary opinion.

My own thoughts proceed very largely in parallel with Sir Leslie's.

He points to real facts and real challenges and analyses them engagingly. But I doubt whether his prescription is adequate in

scale, or whether, since some of the malaise is due to the inadequacy of our institutions to control Government, he is aiming altogether at the right target. What is wanted, I suspect, is a thorough-going constitutional reform, and for that, although the three or four branches of the legal profession have a vital contribution to make, we have to look for something far more widely based and far more radical in conception than can be produced

by a revision of legal thinking within the profession. We need to alter the actual functioning and powers of Parliament and the very institutions national and regional on which legislative and executive action are based.

Lord Hailsham, a Privy Councillor and Companion of Honour, was Lord Chancellor 1970-74. He is editor of Halsbury's Laws of England, 4th Edition