Leslie Scarman was one of the most influential minds in the common law of the twentieth century. He was a distinguished judge; but this was not what made him special. His singular contributions lay in the part he played in introducing institutional law reform as a regular fact of our legal life and his early endorsement of legally protected human rights in a culture traditionally hostile to that idea. As I shall show, there was a unity in his legal philosophy. It continues to have an impact. His beneficiaries are legion, not only in Britain but in the four corners of the world where the common law is practised.
I first met Scarman in 1975. I had just been appointed foundation Chairman of the Australian Law Reform Commission. He had then recently retired as the first Chairman of the Law Commission of England and Wales. He was graceful and energetic in our encounters. He had a stooping figure, with a face that few who looked on it could forget: pale, high cheek bones, dimples occasionally showing in the sunken cheeks whenever his taut skin would permit it. He was genuinely interested in the plans for law reform that we were formulating on the opposite side of the world. His enthusiasm was infectious.
Nearly a decade later, in 1983-4, we had two further encounters. He wrote a foreword to a book of essays of mine. It mixed in equal portions his support for youthful Australian convention to the "all-embracing, universal approach" to law reform whilst adding due warnings about the "doubting voices to be heard in the dark jungle of the law". He noted Sir Michael Kerr's unanswered question about securing parliamentary time to consider proposals for law reform. But he commended a bold approach "to all with a social conscience". And he asked, "Who has no such conscience?". For Scarman, life without social engagement was unthinkable. Yet he saw, from great experience, the need to work within the legal system to give social conscience a reality and to improve the law's capacity to deliver justice.
By this time, Scarman had become Baron Scarman of Quatt, a Shropshire village near the Welsh border. We met again in New Zealand in 1984 where he was the principal judicial guest at the national law conference, held in Rotorua.
The conference fell during the week of Anzac Day. This is a holiday that Australia and New Zealand share to commemorate the landing of their joint army corps at Gallipoli, in Turkey, in a bold but ultimately fruitless endeavour of the British Empire to open a second front in the Great War. Scarman was everywhere during that conference. He shared fully in our egalitarian antipodean ways. He was utterly without airs and graces. He joined the Australasian participants at the Dawn Service. Beckoned to the shore of Lake Rotorua by Maori soldiers, past and present, we gathered at Ohinemutu in the swirling mists, emanating from subterranean volcanic effusions. Because of his height, Scarman stood out – tall and spare. He joined us in reverence to the moment that our three nations shared. Maori and Pakeha New Zealanders, Australians and British were brought together in the special harmony of history, lost blood, wars, our liberties and the enduring legal system that we share in common.
Scarman was a natural leader. Most of us in Rotorua deferred to him for his fame and achievements which were already considerable. I secured a photograph showing us together during the conference. Alongside an image that Lord Denning had signed for me two decades earlier at the Sydney Law School, the photograph has accompanied me in my chambers throughout my career. Denning and Scarman, two distinct, creative leaders of our law. They were heroic figures. They had an influence that spread throughout the Commonwealth of Nations and beyond.
There were important differences in the approaches to law of Denning and Scarman. As a judge, Scarman was much more traditional and less creative. He saw the way to overcome obstacles to justice in the law "not by departure from precedent but by amending legislation". He was fearful of too much judicial invention in the courtroom. He thought that this could lead to "confidence in the judicial system [being] replaced by fear of it becoming uncertain and arbitrary in its application". He was anxious lest this would render "society … ready for Parliament to cut the power of the judges. Their power to do justice will become more restricted by law than it need be, or is today".
Scarman's appointment to the House of Lords, where judicial choices must legitimately and often be made to re-express the old law and to make it more fitting for new times, made little difference. As a judge he remained conventional. He offered barely disguised criticism of Lord Denning's creativity which he clearly found distasteful and even, on occasion, dishonest. He kept his personal liberalism in firm check or channelled it carefully as, for example, in his decision on the law of blasphemy in the Gay News case. In Sidaway v Governors of Bethlem Royal Hospital, he declined to fashion a new principle of informed consent for medical treatment, although final courts in Australia, Canada and elsewhere were to experience no such hesitations.
For this restraint Scarman was sometimes criticised as an unreliable 'liberal', who failed to use his proper authority as a judge - especially in the final court - to push the law in the directions that modernity and justice could readily sustain. Yet in a sense, it was Scarman's very disinclination to exhibit creativity from the judicial seat that propelled him towards the two great instruments of reform with which his name will always be attached. I refer to his work as the first Chairman of the English Law Commission and his pioneering advocacy, from as early as 1974, of acceptance of the European idea of a charter of fundamental human rights. It was by parliamentary law reform, and by judicial creativity specifically authorised by parliamentary law, that Scarman thought English law should develop; and basically not otherwise.
The Law Commission that Scarman helped to establish still flourishes. It became the model for like institutions throughout the Commonwealth of Nations. It still is. Yet his dearest wish was to live to see the Human Rights Act 1998 (UK) come into force. This wish was granted to him. By endorsing and ensuring the success of these new institutions and procedures, Scarman put his imprint on the present and the future face of English law. It was a mighty contribution. My purpose is to chronicle and celebrate it.
Because this is the first lecture to honour Leslie Scarman, I must say something of the parts into which his life may be divided. I will acknowledge his service as a judge by indicating some of the many instances in which his reasoning has been accepted and applied in Australia. I will describe his contribution to establishing the modern institutions of law reform that have spread throughout the world. I will recount the ongoing challenges for institutional law reform that he foresaw twenty years ago in his foreword to my book. Finally, I will demonstrate the critical importance for good governance of the bold appeal that Scarman made for enshrining fundamental human rights and freedoms in the law. I will demonstrate the importance of his appeal. It came just in time.
EARLY LIFE AND WAR YEARS
