THE HAMLYN LECTURES Thirtieth Series LIBERTY, LAW AND JUSTICE Sir Norman Anderson I STEVENS 1 LIBERTY, LAW AND JUSTICE by SIR NORMAN ANDERSON O.B.E., Q.C., LL.D., F.B.A. formerly Professor of Oriental Laws and Director of the Institute of Advanced Legal Studies in the University of London The concepts of liberty, law and justice, and the extent to which they serve to guarantee individual freedoms, form the central theme of the 1978 Hamlyn Lectures. Sir Norman Anderson examines the legal framework within which fundamental rights may be exercised in an important contribution to current discussion. Divided into four lectures, the work commences with an analysis of the relation of law to individual liberty today. In the second lecture, the author weighs up the prospect of incorporating a Bill of Rights into the Constitution of the United Kingdom. He looks at the American Constitution and considers the Universal Declaration of Human Rights and the European Convention. Anti-discrimination legislation is explored next. Enactment of the Sex Discrimination Act 1975 and the Race Relations Act 1976 aroused sharp controversy and the likely effectiveness of these measures remains problematic. In a detailed exposition of the back- ground to these statutes, comments of many leading authorities are reviewed. Limitation of human rights is dealt with in the final lecture. The degree of freedom enjoyed by Britain's Press is compared with that obtaining in the United States. There is a survey of the much-criticised Official Secrets Acts and forthright views are offered on a wide range of censorship questions. Awareness of the ever increasing intervention of law on all aspects of daily life, and the conflicts of interest thereby created, has never been greater. Publication of this carefully researched treatise is therefore especially appropriate and will be welcomed by every- one concerned with the human rights debate. Published under the auspices of THE HAMLYN TRUST 1978 A Iso available in paperback THE HAMLYN LECTURES THIR TIETH SERIES LIBERTY, LAW AND JUSTICE AUSTRALIA The Law Book Company Ltd. Sydney: Melbourne: Brisbane CANADA AND U.S.A. The Cars well Company Ltd. Agincourt, Ontario INDIA N.M. Tripathi Private Ltd. Bombay Eastern Law House Private Ltd. Calcutta M.P.P. House Bangalore ISRAEL Steimatzky's Agency Ltd. Jerusalem: Tel Aviv : Haifa MALAYSIA : SINGAPORE : BRUNEI Malayan Law Journal (Pte) Ltd. Singapore NEW ZEALAND Sweet & Maxwell (N.Z.) Ltd. Wellington PAKISTAN Pakistan Law House Karachi LIBERTY, LAW AND JUSTICE BY SIR NORMAN ANDERSON, O.B.E., Q.C., LL.D., F.B.A. Formerly Professor of Oriental Laws, and Director of the Institute of Advanced Legal Studies, in the University of London Published under the auspices of THE HAMLYN TRUST LONDON STEVENS & SONS 1978 Published in 1978 by Stevens & Sons Limited of 11 New Fetter Lane, London. Photoset by Red Lion Setters, London. Printed in Great Britain by Fletcher & Son Ltd., Norwich ISBN Hardback 0 420 45420 9 Paperback 0 420 45430 6 © Stevens & Sons 1978 CONTENTS The Hamlyn Lectures ....... vii The Hamlyn Trust ....... ix INTRODUCTION 1 1. LIBERTY, LAW AND JUSTICE TODAY .... 4 2. HUMAN RIGHTS AND JUSTICE: Do WE NEED A BILL OF RIGHTS? .... 34 3. HUMAN RIGHTS AND LEGISLATION: RACE AND SEX DISCRIMINATION .... 60 4. HUMAN RIGHTS AND THEIR LIMITATION: FREEDOM OF SPEECH, ASSEMBLY AND THE PRESS . 99 EPILOGUE 138 THE HAMLYN LECTURES 1949 Freedom under the Law by The Rt. Hon. Lord Denning 1950 The Inheritance of the Common Law by Richard O'Sullivan, Esq. 1951 The Rational Strength of English Law by Professor F.H. Lawson 1952 English Law and the Moral Law by Dr. A.L. Goodhart 1953 The Queen's Peace by Sir Carleton Kemp Allen 1954 Executive Discretion and Judicial Control by Professor C.J. Hamson 1955 The Proof of Guilt by Dr. Glanville Williams 1956 Trial by Jury by The Rt. Hon. Lord Devlin 1957 Protection from Power under English Law by The Rt. Hon. Lord MacDermott 1958 The Sanctity of Contracts in English Law by Sir David Hughes Parry 1959 Judge and Jurist in the Reign of Victoria by C.H.S. Fifoot, Esq. 1960 The Common Law in India by M.C. Setalvad, Esq. 1961 British Justice: The Scottish Contribution by Professor T.B. Smith 1962 Lawyer and Litigant in England by The Hon. Mr. Justice Megarry 1963 Crime and the Criminal Law by The Baroness Wootton of Abinger viii The Hamlyn Lectures 1964 Law and Lawyers in the United States by Dean Erwin N. Griswold 1965 New Law for a New World? by The Rt. Hon. Lord Tangley 1966 Other People's Law by The Hon. Lord Kilbrandon 1967 The Contribution of English Law to South African Law; and the Rule of Law in South Africa by The Hon. O.D. Schreiner 1968 Justice in the Welfare State by Professor H. Street 1969 The British Tradition in Canadian Law by The Hon. Bora Laskin 1970 The English Judge by Henry Cecil 1971 Punishment, Prison and the Public by Professor Sir Rupert Cross 1972 Labour and the Law by Dr. Otto Kahn-Freund 1973 Maladministration and its Remedies by K.C. Wheare 1974 English Law — The New Dimension by Sir Leslie Scarman 1975 The Land and the Development; or, The Turmoil and the Torment by Sir Desmond Heap 1976 The National Insurance Commissioners by Sir Robert Micklethwait 1977 The European Communities and the Rule of Law by Lord Mackenzie Stuart 1978 Liberty, Law and Justice by Professor Sir Norman Anderson THE HAMLYN TRUST The Hamlyn Trust came into existence under the will of the late Miss E.W. Hamlyn, who died in 1941. In 1948 the Chancery Division of the High Court of Justice approved a Scheme for the administration of the Trust, paragraph 3 of which sets out the object of the charity and is quoted on page 2, below. The first Chairman of the Hamlyn Trustees, Dr. John Murray, served from 1948 to 1964. The second Chairman, Sir Norman Anderson, succeeded him in 1964 and retired from the Trust in 1977. It is therefore appropriate that the Thirtieth Series of the Hamlyn Lectures should be given by Sir Norman Anderson, and that the Trustees should record their apprecia- tion of the leadership given by Sir Norman during his fruitful term of office. The Trustees under the Scheme number eight: Professor J.A. Andrews, M.A., B.C.L., J.P. Professor A.L. Diamond, LL.M. (Chairman) The Rt. Hon. Lord Edmund-Davies Professor D.S. Greer, B.C.L., LL.B. Professor B. Hogan, LL.B. Doctor Harry Kay, Ph.D. Professor D.M. Walker, Q.C., M.A., Ph.D., LL.D., F.B.A. Professor Lord Wedderburn of Charlton, MA., LL.B. The Thirtieth Series of Hamlyn Lectures was delivered in March 1978 by Professor Sir Norman Anderson at the Univer- sity of Bristol. March 1978 AUBREY L.DIAMOND, Chairman of the Trustees. INTRODUCTION IT was nearly 30 years ago that the first series of Hamlyn Lectures was given, in 1949, by Mr. Justice Denning (as he then was). This was just eight years after the death of Miss Emma Warburton Hamlyn at the age of 80; and only one year after the approval, by the Chancery Division of the High Court, of a scheme for the administration of a Trust to which the residue of her estate, which had been bequeathed in terms which have been described as "somewhat vague," were to be devoted. The first Chairman of the Hamlyn Trustees, Dr. John Murray (at first Principal of the University College of the South-West, and subsequently Vice-Chancellor of what had then become the University of Exeter), had the privilege of having known Miss Hamlyn personally; but when I succeeded him in 1964 she was to me only a legendary figure. So, when my fellow Trustees paid me the wholly unexpected compliment of asking me to give these lectures in the year after my retirement from the Trust, I hoped to be able to honour her memory in a more adequate way than the brief foreword to successive volumes that I had so often signed. It seems, however, that no portrait or photograph is available for reproduction, and material for a pen portrait is scanty in the extreme. The only description I have been able to obtain has been kindly provided by Mr. Malim, for many years Clerk to the Trustees, as a result of a call he recently made on Miss J. Hamlyn — whose father, Mr. Douglas Hamlyn, was first cousin to Mr. William Bussell Hamlyn, our benefactress' father, and who used from time to time to send his coach over to Torquay, where Mr. William Hamlyn practised as a solicitor, to bring both father and daughter over to lunch. Miss J. Hamlyn remembers her cousin as "Edwardian," and as wearing long, dark dresses and "large, dark hats with semi- herbaceous borders for trimming." She was "quite a character," 2 Introduction "autocratic rather than otherwise," and "very intellectual." She had studied law, and she insisted that the testamentary directions in her will should be precisely as she had herself drawn them. She came from a well-known Devon family which can trace its lineage back to William the Conqueror; she was well-versed in literature, music and art and a frequent visitor to Europe and the Mediterranean; she was particularly interested in comparative jurisprudence and ethnology; and she was a great admirer of the law and institutions of her own country. So it is not inappro- priate that paragraph 3 of the Scheme for the Hamlyn Trust should provide, somewhat quaintly, that: "The object of this charity is the furtherance by lectures or otherwise among the Common People of the United Kingdom of Great Britain and Northern Ireland of the knowledge of the Comparative Jurisprudence and the Ethnology of the chief European Countries including the United Kingdom and the circumstances of the growth of such Jurisprudence to the intent that the Common People of the United Kingdom may realise the privileges which in law and custom they enjoy in comparison with other Euro- pean Peoples and realising and appreciating such privileges may recognise the responsibilities and obligations attaching to them." This substantially retains Miss Hamlyn's own wording, except that she referred to "the Common People of this country," "our country," etc.