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Law reform and human rights – Scarman’s great legacy

Published online by Cambridge University Press:  02 January 2018

Michael Kirby AC CMG
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Abstract

Leslie Scarman was one of the most influential common law judges of the twentieth century. As a judge, he was relatively conventional and sometimes unadventurous. His technique can be contrasted with that of his contemporary, Lord Denning. However, his role in establishing the Law Commission of England and Wales afforded a model that has been copied throughout the world. His early support for a law of human rights encouraged the adoption of the Human Rights Act 1998. This paper explains the essential unity of Scarman’s legal philosophy and the importance of his contribution at a time when basic assumptions about governance in Westminster democracies are being re-examined and sometimes found wanting.

Type
Research Article
Information
Legal Studies , Volume 26 , Issue 4 , December 2006 , pp. 449 - 474
Copyright
Copyright © Society of Legal Scholars 2006

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References

Footnotes

1. Bedford’s, Sybille description in As It Was (London: Picador, 1990)Google Scholar depicting Scarman as a judge hearing In the Estate of Fuld Deceased[1965] P 405, a probate suit that lasted 91 days.

2. Foreword by Scarman, Lord in Kirby, M Reform the Law (Melbourne: Oxford University Press, 1983) p vi.Google Scholar

3. Ibid, p vii.

5. McGinness, M Obituary of Lord Scarman’ (2005) 79 Australian Law Journal 525 Google Scholar at 526.

6. See, eg, the foreword by Dr LM Singvi to the lecture Law Reform in a Democratic Society (New Delhi, India, 1985) writing of Lord Scarman’s reputation in India.

7. Pirelli General Cable Works Ltd v Oscar Faber and Partners [1983] 2 AC 1 at 19.

8. DuPont Steels Ltd v Sirs [1980] 1 WLR 142 at 171–172 (HL).

9. National Westminster Bank plc v Morgan [1985] 1 AC 686 at 707 where he accused Denning of ‘deliberately avoiding reference to past authority’ in his reasons in Lloyds Bank Ltd v Bundy [1975] QB 326 at 336.

10. Lee, S Judging Judges (London: Faber and Faber, 1988) p 155.Google Scholar

11. English Law: The New Dimension Hamlyn Lectures (London: Stevens and Sons, 1974); see pp 16–18.

12. Many details of his early life draw on Scarman’s conversation with John Mortimer, published in the latter’s Character Parts (Middlesex: Penguin, 1987) p 198.

13. Quoted in McGinness, above n 5.

14. Ibid.

15. Ibid. He was reportedly particularly skilled in dismembering expert witnesses: Lord Bingham of Cornhill, Obituary, Memorial Service, 1 December 2004.

16. S Sedley ‘Obituary of Lord Scarman’ The Guardian 10 December 2004.

17. Lee, above n 10, at 160.

18. Sedley, above n 16.

19. Proposals for English and Scottish Law Commissions (January 1965) at 2.

20. Law Com No 2 (HMSO, 1965).

21. Ibid, at 6.

22. Calabresi, G A Common Law for the Age of Statutes (Cambridge: Harvard University Press, 1982) p 1 Google Scholar; at 164.

23. See, eg, Lee, above n 10, at 189.

24. Letter to the author from the Hon Elizabeth Evatt, 31 December 2005. She says, ‘He was universally admired and respected by all the staff who found him inspiring when he delved into their topics’.

25. Law Commission First Annual Report 1965–1966 Law Com No 4 (HMSO, 1966) at 3[11]; Law Commission Second Annual Report 1966–1967 Law Com No 12 (HMSO, 1967) at 6[28].

26. See, eg, Law Commission First Annual Report 1965–1966, above n 25, at 17[112]. This was a constant theme of Scarman’s; see Nordlinger, A ‘Lord Scarman provokes response’ (1980) 15(4) Australian Law News 40 Google Scholar; cf

27. Report on Northern Ireland Cmnd 566 (1972).

28. Red Lion Square Disorders of 15 June 1974 Cmnd 5919 (1980).

29. The Scarman Report: Report of an Inquiry by the Right Honourable the Lord Scarman (Middlesex: Penguin, 1982).

30. Obituary of Lord Scarman The Economist 1 January 2005 at 68.

31. Quoted in McGinness, above n 5, at 527.

32. Ibid.

33. The Economist, above n 30, at 68.

34. Ibid. There were analogous legal inquiries in Australia; see, eg, Australian Law Reform Commission Complaints Against Police ALRC 1 (1975) and Australian Law Reform Commission Complaints Against Police (Supplementary Report) ALRC 9 (1978).

35. Sedley, above n 16.

36. Lord Morris of Aberavon QC discussing the Scarman inquiries (Hansard HL Deb, vol 648, col 883, 31 May 2003) noted Beatson, J Should judges conduct public inquiries?’ (2005) 121 Law Quarterly Review 221 Google Scholar at 252.

37. Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 16.

38. R v Barnsley Council, ex p Hook [1976] 1 WLR 1052 at 1058; see Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 509.

39. R v Preece [1977] QB 370 at 375–376. This was applied in Crampton v The Queen (2000) 206 CLR 161 at 186–187, paras 61–62 and at 194–195, paras 91 and 95.

40. Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 498–499. This was applied in Williams v Spautz (1992) 174 CLR 509 at 522, 529 and 553.

41. R v Kane (1977) 65 Cr App R 270 applied in The Queen v Chin (1985) 157 CLR 671 at 686.

42. Re James (An Insolvent) [1977] Ch D 41 at 72. This was applied in Attorney-General for the Commonwealth v Tse Chu-Fai (1998) 193 CLR 128 at 149, para 55. See also Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231 at 239. This was applied in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 338. Cf Ahmad v Inner London Education Authority [1978] QB 36 at 48.

43. (2004) 220 CLR 1 at 95–96, para 246.

44. See, eg, Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 322–323.

45. [1978] QB 36.

46. Coleman (2004) 220 CLR 1 at 95, para 245.

47. [1978] QB 36 at 48.

48. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. Lord Scarman affirmed, at 407, that ‘the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter’. This was applied in DPP (SA) v B (1998) 194 CLR 566 at 599, para 62.

49. [1981] AC 303 at 360. This was applied in Re Tracey, ex p Ryan (1989) 166 CLR 518 at 539 per Mason CJ, Wilson and Dawson JJ, and at 572 per Brennan and Toohey JJ.

50. [1983] 1 AC 280.

51. See, eg, Hinch v Attorney-General (Vic) (1987) 164 CLR 15.

52. [1980] 1 WLR 277.

53. Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 at 117 and 165.

54. Woodar, above n 52, at 300.

55. See, eg, Gammell v Wilson [1982] AC 27 at 77. This was applied in Fitch v Hyde-Cates (1982) 150 CLR 481 at 491 and 498; Lim Poh Choo v Camden and Islington Area Council [1980] AC 174 at 193. This was applied in Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd (1981) 145 CLR 625 at 639 and 677, and in Todorovic v Waller-Jetson Hankin (1981) 150 CLR 402 at 419, 442 and 466. See also Pickett v British Rail Engineering Ltd [1980] AC 136 at 173. This was applied in Johnson v Perez (1988) 166 CLR 351 at 375.

56. [1985] AC 686 at 708.

57. In Garcia v National Australia Bank Ltd (1998) 194 CLR 395 at 406, para 66. See also The Commonwealth v Verwayen (1990) 170 CLR 394 at 441.

58. See, eg, Re W [1985] AC 791 at 795–796 applied by Brennan J in P v P (1994) 181 CLR 583 at 631.

59. Gillick v West Norfolk and Wisbech Area Health Authority and Another [1986] 1 AC 112 at 184.

60. J v Lieschke (1987) 162 CLR 477 at 452; Secretary, Department of Health (Marion’s Case) (1992) 175 CLR 218 at 237 and 316–317; WACB v Minister for Immigration (2004) 79 ALJR 94 at 107–108, para 72; Re Woolley, ex p Applicants M276/2003 (2004) 79 ALJR 43.

61. Gillick, above n 59, at 183.

62. Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 469 and 470. This was applied in Cain v Glass [No 2] (1985) 3 NSWLR 230 at 246; John Fairfax and Sons Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 at 472; Witness v Marsden (2000) 49 NSWLR 429.

63. See, eg, Attorney-General for NSW v Mayas Pty Ltd (1988) 14 NSWLR 342.

64. See, eg, In a Matter of an Application by Chief Commissioner of Victoria Police (2005) 79 ALJR 881 at 895, para 83.

65. D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218, 229 and 232 applied in Cain v Glass [No 2], above n 62, at 246–247 per McHugh JA.

66. Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871 at 882. See comment in Rogers v Whitaker (1992) 175 CLR 479 at 489.

67. See, eg, Bolita v City and Hackney Health Authority [1998] AC 232; Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P53 at 59; Chester v Afshar [2004] UKHL 41, [2005] 1 AC 134 at [9], [15], [88] and [99].

68. (1992) 175 CLR 479 at 483–484. See also Reibl v Hughes [1980] 2 SCR 880 at 894–895; 114 DLR (3d) at 13.

69. Chappel v Hart (1998) 195 CLR 232 at 246, para 32, 254, para 57 and 276, para 94; Naxakis v Western General Hospital (1999) 197 CLR 269 at 275, para 19 and 297, para 81; Rosenberg v Percival (2001) 205 CLR 434 at 439, para 6, 453, para 62 and 476, para 140.

70. [1984] 1 WLR 634 at 637.

71. See J Mortimer, above n 12, pp 204–205; cf Fox v Percy (2003) 214 CLR 118 at 126, para 23. See also State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 at 330, para 89 and Pledge v Roads and Traffic Authority (2004) 78 ALJR 572 at 581, para 43.

72. R v IRC, ex p National Federation of Self Employed [1982] AC 617 at 650; see Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51 at 81.

73. Dupont Steels Ltd v Sirs [1980] 1 WLR 142 at 168; cf Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 79 and Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 355, para 13 and 369, para 47.

74. R v Sang [1980] AC 402 at 454–455.

75. Eg Jago v District Court (NSW) (1989) 168 CLR 23 at 29, 33 and 52.

76. Ridgeway v The Queen (1995) 184 CLR 19 at 27 and 81; Williams v Spautz (1992) 175 CLR 509 at 520 and 529.

77. R v Lemon [1979] AC 617. For later cases see Gay News Ltd v United Kingdom (1983) 5 EHRR 123 and R v Bow Street Stipendiary Magistrate, ex p Chowdhury [1990] 3 All ER 986.

78. R v Lemon, above n 77, at 665.

79. In Bowman v Secular Society Ltd [1917] AC 406.

80. R v Lemon, above n 77, at 658.

81. See remarks of Mr Ken Livingstone, quoted in McGinness, above n 5, at 526.

82. Dworkin, R Law’s Empire (Oxford: Hart, 1986) p 244.Google Scholar

83. Kirby, MD Judicial Activism: Authority, Principle and Policy in the Judicial Method Hamlyn Lectures 2003 (London: Sweet & Maxwell, 2004) p 29.Google Scholar

84. Re James, above n 42, at 71. This was applied in Attorney-General for the Commonwealth v Tse Chu Fai, above n 42, at 149, para 55. See also Air India v Wiggins (1980) 71 Cr App R 213 at 218; Morris v Beardmore [1981] AC 446 at 455. This was applied in Coco v The Queen (1994) 179 CLR 427 at 454; R v Entry Clearance Officer, ex p Amin [1983] 2 AC 818 at 836. This was applied in my dissent in IW v The City of Perth (1997) 191 CLR 1 at 52. See also South West Water Authority v Rumble [1985] AC 609 at 617. This was applied in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 381, para 69.

85. Steyn, above n 22, at 168–170.

86. McGinness, above n 5, at 527.

87. Ibid. The story of this operatic epiphany also appears in John Mortimer’s Character Parts, above n 12.

88. Attorney-General v Guardian Newspapers Pty Ltd [1987] 1 WLR 1248 at 1282 (HL). A different conclusion was reached in Australia. See Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 affirming Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1988) 10 NSWLR 86 (NSWCA).

89. Lee, above n 10, at 162.

90. J Morton ‘Obituary of Lord Scarman’ The Independent 10 December 2004.

91. Weisbrot, D The future of institutional law reform’ in Opeskin, B and Weisbrot, D (eds) The Promise of Law Reform (Sydney: Federation Press, 2005) p 18.Google Scholar

92. Footnotes omitted. The footnotes refer to ibid, chapters 1, 17, 28 and 29.

93. Ibid.

94. E Singini ‘Foreword’ in ibid, p v.

95. J Young ‘The influence of the minority’ (1978) 52 Law Institute Journal (Vic) 500.

96. See B Opeskin ‘Measuring success’ in B Opeskin and D Weisbrot (eds), above n 91, p 219, figure 14.6, Judicial citation of law reform work.

97. Weisbrot, above n 91, p 30. See also MD Kirby ‘Are we there yet?’ in ibid, p 438.

98. Weisbrot, ibid, pp 35–36; Kirby, ibid, p 439.

99. The ALRC in its report on the civil justice system in Australia did not recommend major changes to the adversarial system. See Australian Law Reform Commission Managing Justice: A Review of the Federal Civil Justice System ALRC 89 (2000) noted in Kirby, above n 97, p 438.

100. E Caldwell ‘A vision of tidiness: codes, consolidation and statute law revision’, in B Opeskin and D Weisbrot (eds), above n 91, pp 45–48.

101. M Payne ‘Law reform and the legislature’, in ibid, p 313; cf Commissioner of Taxation v Stone (2005) 79 ALJR 956 at 968, paras 74–76. Senator Payne is a member of the Australian Senate and chair of the Senate Standing Committee on Legal and Constitutional Affairs.

102. Kirby, above n 97, p 449.

103. Weisbrot, above n 91, pp 29–30. See also R MacDonald ‘Continuity, discontinuity, stasis and innovation’ in ibid, pp 88–89.

104. See, eg, J Hannaford ‘Implementation’ in ibid, p 222; L Glandfield ‘Law reform through the executive’ in ibid, p 288. Mr Hannaford was Attorney-General for New South Wales. Mr Glandfield is Director-General of the New South Wales Attorney-General’s Department.

105. Caldwell, above n 100, p 48.

106. Ibid, p 41.

107. Ibid, p 42.

108. Ibid, p 42, fn 7.

109. Human Tissue Transplants ALRC 7 (1977). See Kirby, above n 97, p 439.

110. Australian Law Reform Commission and Australian Health Ethics Committee Essentially Yours: The Protection of Human Genetic Information in Australia ALRC 96 (2003) and Australian Law Reform Commission Genes and Ingenuity: Gene Patenting and Human Health ALRC 99 (2004).

111. Dr Francis Collins, Head of the Human Genome Project, described the work of the ARLC on the law and genome as ‘a truly phenomenal job that put Australia ahead of the rest of the world’ quoted in D Chalmers ‘Science, medicine and health and the work of the Australian Law Reform Commission’ in B Opeskin and D Weisbrot (eds), above n 91, p 381.

112. See, eg, Cattanach v Melchoir (2003) 215 CLR 1. See also Harriton v Stephens (2006) 80 ALJR 791; cf Kirby, MD Ten years in the High Court’ (2005) 27 Australian Bar Review 1 Google Scholar at 21.

113. See, eg, the chapters written by J Hannaford, M Payne and L Glandfield in B Opeskin and D Weisbrot (eds), above n 91, especially p 104, as well as R Sackville ‘Law reform agencies and royal commissions: toiling the same field?’ in ibid, p 274.

114. See JB Robertson ‘Initiation and selection of projects’ in ibid, pp 111–114.

115. See, eg, reform of the Bankruptcy Act 1966 (Cth), s 82 recommended in Australian Law Reform Commission General Insolvency Inquiry ALRC 45 (1988), vol 1, at 16 noted in Coventry v Charter Pacific Corp Ltd (2005) 80 ALJR 132 at paras 140–141.

116. Kirby, above n 97, p 445.

117. Lester, A and Pannick, D Human Rights Law and Practice (London: Butterworths, 2nd edn, 2004 Google Scholar) p 4, para [1.09].

118. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 564 applying Attorney-General v Guardian Newspapers [No 2][1990] 1 AC 109 at 283; cf Gageler, S The legitimate scope of judicial review’ (2005) 26 Australian Bar Review 303 Google Scholar at 304.

119. The UK was the first state to ratify the convention; see Lester and Pannick, above n 117, p 6, para [1.16].

120. Above n 11.

121. Ibid, p 1.

122. Ibid, p 3, citing Lord Simonds in Magor Rural District Council v Newport Borough Council [1952] AC 189 at 191.

123. English Law: The New Dimension, above n 11, p 14.

124. Ibid, pp 17–18.

125. Ibid, p 69.

126. Ibid, p 15. I am indebted to Elizabeth Evatt for this insight.

127. None of these institutions or persons is mentioned in the Australian Constitution.

128. P Cane ‘Taking disagreement seriously: courts, legislatures and the reform of tort law’ (2005) 25 Oxford Journal of Legal Studies 393 at 416.

129. Cf Hailsham, Lord Elected dictatorship’ (1997) 30 Parliamentary Affairs 324 Google Scholar and

130. W Bagehot The Monarchy, discussed in McWhinney, E The Governor-General and The Prime Ministers (Vancouver: Rondsdale, 2005 Google Scholar) p 166.

131. As, eg, the proposed abolition of the office of the Lord Chancellor which had endured for 800 years without prior consultation with the Queen; see Windlesham, Lord The Constitution Reform Act 2005: judges and Constitutional change 2005 Public Law 806 Google Scholar at 815–816.

132. Mason, AF Democracy and the law: the state of the Australian political system 2005 Law Society Journal (NSW) Google Scholar (November) 68 at 69.

133. Brown v West (1990) 169 CLR 195.

134. Combet v The Commonwealth (2005) 80 ALJR 247 at 297–304, paras 221–256. Cf ‘The Senate: now and then’ [2005] 45 The Australian Institute News (December) 9.

135. Birkinshaw, P ‘Government and information – the limits of law’s empire’ (2005) 6 Amicus Curiae Google Scholar 3 at 10–11.

136. In consequence there is growing reported mistrust of electronic news and declining sales of the print media; see Mindich, DTZ Tuned Out: Why Americans Under 40 Don’t Follow the News (New York: Oxford University Press, 2004).Google Scholar

137. See N Savva ‘Fischer seeks a more conservative court’ The Age (Melbourne) 5 March 1997 at 1.

138. See, eg, B v Minister for Immigration and Multicultural Affairs (2004) 219 CLR 365; Muir v The Queen (2004) 78 ALJR 80 at 784, para 23; Al-Kateb v Godwin (2004) 219 CLR 562 at 604, para 109.

139. Reflection on this position has led Sedley LJ to propound a bipolar sovereignty in Parliament and the courts, with the Executive Government answerable to each: S Sedley ‘Everything and nothing – the changing Constitution’ London Review of Books 7 October 2004, 10 at 12.

140. See the debate in Laws, J Law and democracy 1995 Public Law Google Scholar 72 at 81–92; ) at 10; and ) pp 49–52.

141. Mason, above n 132, at 69.

142. Breyer, S Active Liberty: Interpreting our Democratic Constitution (New York: Knopf, 2005 Google Scholar) p 134.

143. Al-Kateb v Godwin (2004) 219 CLR 562 at 594–595, para 73 per McHugh J referring to Williams, G The Case for an Australian Bill of Rights (Sydney: University of New South Wales Press, 2005 Google Scholar); cf

144. The government of the State of Victoria has announced the intention to propose the enactment of a ‘Statutory charter of rights and responsibilities’: Australian Financial Review 21 December 2005 at 8.

145. In A and Others v Secretary of State for the Home Department; X and Another v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68 at [41] citing International Transport Roth GmbH v Secretary of State for the Home Department [2002] EWCA Civ 158, [2003] QB 728 at [27].

146. Anti-Terrorism (Crime and Security) Act 2001 (UK).

147. Mason, above n 132, at 68; Williams, above n 143.

148. Mortimer, above n 12, p 203.

149. Clayton, R Judicial deference and “democratic dialogue”: the legitimacy of judicial intervention under the Human Rights Act 1998 2004 Public Law Google Scholar 33 at 46; 333 at 356.

150. Wade, W Administrative Law (Oxford: Oxford University Press, 6th edn, 1988 Google Scholar) p 7. See also ) p 86;

151. Cf Plaintiff S 157/2004 v The Commonwealth (2003) 211 CLR 476 at 494, para 13.