Chapter 6 Radio, The Listener and The Times: lessons from the 1950s in the public understanding of law

Introduction

The 1950s were a golden era for a certain kind of magisterial talk about law on BBC Radio, with scripts preserved and disseminated by the BBC’s weekly magazine, The Listener. Technological innovations and changing values mean that our times are markedly different. For example, it is welcome that the media are much more diverse in the 2020s, BBC Radio has lost its monopoly, and the ‘mainstream’ or traditional media seem increasingly outflanked by blogs, podcasts, streaming and social media. These forms of communication are less formal in style and are more readily available at the disposal of the listener or reader, rather than the necessarily linear, scheduled talks of the 1950s. Nevertheless, contributions from Lord Radcliffe early in the 1950s and especially Professor H.L.A. Hart at the end of the decade have much to teach us all about how the spoken and written word can deepen and broaden the public understanding of law in the contemporary era.

Lord Radcliffe’s 1951 Reith Lectures on the Home Service (now Radio 4) were on ‘The Problem of Power’, the relationship between the powerful in a state and its other citizens, and therefore raised questions about authority, law and politics.¹ His seven weekly talks were the fourth of an annual, prestigious series, the major set-piece for the BBC after the Second World War, named in honour of its influential former director-general, Lord Reith.

Professor Herbert Hart’s 1959 talk on the Third Programme (now Radio 3) was entitled ‘Immorality and Treason’ and was on the relationship between law and morality.² This was a single talk of twenty-five minutes, first broadcast at 8.30 p.m. on 14 July 1959, following Czech music at 8 p.m. and followed at 8.55 p.m. by Rostropovich playing the cello in a selection of music by Bach and Beethoven.³ The talk was repeated later at night on 7 September in between Purcell and a piano recital.⁴

The scripts of Radcliffe’s lectures were published week after week in The Listener and were then collated in a book. By the end of the 1950s, even Lord Radcliffe was dissatisfied with his Reith Lectures of 1951.

Hart’s talk was published as an article in The Listener of 30 July 1959. By the mid-1960s, there had been so much to-ing and fro-ing between Hart and Devlin in later lectures that the original broadcast talk was submerged by publication of two slim but influential books, known collectively by law students and others as the Hart–Devlin debate. Hart’s Law, Liberty and Morality⁵ was published in 1963 and Devlin’s The Enforcement of Morals⁶ in 1965, both by Oxford University Press which also published a reflection on the debate by a professor of theology, Basil Mitchell, Law, Morality and Religion in a Secular Society,⁷ in 1967 and then my own analysis in Law and Morals in 1986.⁸

Radcliffe and Hart had each enjoyed a classical education at New College, Oxford, and proceeded to practise law as barristers before using their intelligence, in every sense, in the Second World War.⁹ Radcliffe was the director of the Ministry of Information. Hart worked for MI5, including at Bletchley where he knew Alan Turing, and in London where he worked closely with philosophy dons in intelligence work, Gilbert Ryle and Stuart Hampshire. After the war, Radcliffe was given various missions by Labour government ministers who had worked with him during the war, and was then appointed in 1949 as a Law Lord, without having had to serve first as a judge in the High Court or the Court of Appeal. He was most famous, or infamous, for having presided in 1947 over the swift, or rushed, drawing of the boundaries between India and Pakistan as they became independent of the UK.¹⁰ Radcliffe had never been to India before and never visited India or Pakistan afterwards. Before and after that task, set by the Attlee government with a time limit of five weeks, Radcliffe chaired other inquiries, reviews and public bodies. Meanwhile, Hart became a tutor in philosophy at his old college, New, in Oxford and then professor of jurisprudence at Oxford.

Their radio highlights of the 1950s came with preludes and encores. In turning his lectures into a book, Radcliffe gave himself two encores, placing some reflections as an introduction to the hardback edition in 1952 and adding a gloomy postscript for the 1958 paperback version. The latter had been printed also in two parts as articles in The Times on 24 and 25 February 1958. The Times published in response an excoriating letter from Professor H.L.A. Hart on 1 March 1958. Hart’s July 1959 talk on the Third Programme was itself a response to a lecture given on 15 March 1959 at the British Academy by the judge, Sir Patrick Devlin.¹¹ When asked to choose a topic in 1958, Devlin had resolved to discuss the issues raised by the reasoning of the Wolfenden Report,¹² the work of a committee which was established by the Home Office in 1954 and which had reported in 1957. It made recommendations on reforming the criminal law on offences related to prostitution, primarily so as to make it less apparent on the streets of London, and on liberalising the law to stop it being criminal for consenting men in private to engage in gay sex. The prosecution of some prominent characters for such offences and the risk of gay men being blackmailed had led to the committee being created. Just before it began its proceedings, Alan Turing, the leading hero among the wartime code-breakers at Bletchley Park, had taken his own life after being convicted under the pre-existing law (for which, in 2013, he received a posthumous royal pardon).¹³ Devlin had appeared before the committee, and was in favour of the reforms, but he took issue with the report’s reasoning. Now, Hart took apart Devlin’s reasoning. Numerous encores by Devlin and Hart ensued. None were quite as good as Hart’s Third Programme talk.

Do these broadcast talks speak to our times? My argument here is that the public understanding of law can be deepened and broadened by revisiting, and learning from, Lord Radcliffe’s foreword to the book of his Reith Lectures and from that short original article by Hart in The Listener. For instance, in 2019, Lord Sumption, who had recently retired as a Supreme Court justice, gave the Reith Lectures on ‘Law and the Decline of Politics’ without once referring to Lord Radcliffe’s Reith Lectures.¹⁴ In the 2024/5 Parliamentary year, the major legislative drama is about assisted dying, where Professor Hart’s 1959 talk is relevant to disentangling good and bad arguments on all sides of the national debates. In both cases, more attention to Radcliffe’s and Hart’s lessons from the 1950s would have been invaluable.

Law on BBC Radio from the 1920s to the 1950s

The BBC’s first radio broadcast talk about law was by Florence Clarke in August 1923 and further lectures by women followed in 1924.¹⁵ By 1954, however, the first collection of BBC Third Programme broadcast talks in the series The Law in Action to be published in a book consisted of six lectures by men.¹⁶ The second series in 1957 had ten talks, all by men.¹⁷ What had happened to the pioneering approach of BBC Radio? In between times had come the depression, the build-up to war and the Second World War itself.

Two privileged white men did not constitute a cross-section of British society in the 1950s but all Law Lords and all UK law professors were white men in that decade.¹⁸ After the war, the BBC Features department had commissioned Jenifer Wayne to create a series This Is the Law, with a book of stories from the broadcasts appearing in 1948, with the subtitle ‘Stories of Wrongdoers by Fault or Folly’.¹⁹ Jenifer Wayne explained that,

These stories are freely adapted from a series of radio programmes broadcast at various times in the BBC Home Service. I am grateful to the BBC for allowing the material to be reproduced in this form. But I should like to thank particularly the barrister-at-law whose patient advice was the basis for the scripts, and all the actors whose lively co-operation brought them to the air as entertainment.²⁰

The focus in This Is the Law, as the title indicated, was on setting out, through stories of incidents, what the law did or did not entail on a variety of scenarios the public might encounter. Jenifer Wayne was advised by a prolific broadcaster on the law and legal journalist, known by a pseudonym as C.H. Rolph.²¹ He had started broadcasting and writing on the side during a twenty-year career as a police officer. His actual surname was Hewitt. Wayne and Rolph/Hewitt married after the latter’s divorce from his first wife. He was a campaigner for social justice reforms, including the abolition of capital punishment and the decriminalisation of homosexual acts between consenting male adults in private.²²

One example of ethnic diversity in broadcasting about law in the 1950s was that Learie Constantine, the famous West Indian cricketer, was given a platform by the BBC.²³ This was not only as a cricket commentator and pundit, but as a law student, then barrister, litigant against racial discrimination, politician, diplomat and celebrity. This carried on through the decades as Constantine was honoured with a knighthood, a peerage, an appearance on the BBC’s Desert Island Discs, and appointment as the first Black governor of the BBC. He was, for example, on Any Questions? on 9 November 1951 on the Light Programme (which later became Radio 2), broadcast from what was then University College, Southampton, and was described among his many accomplishments as a law student:

Learie Constantine, a newcomer to ‘Any Questions?’ was born in Trinidad. He played cricket for the West Indies in this country and in Australia and New Zealand. In 1929 he became a professional, and played for Nelson, Lancashire, in the Bradford League until 1942, when he joined the Ministry of Labour. He has written books on cricket, and broadcast many times, both on cricket and on other subjects. He is at present studying law in London.²⁴

In 1959, he had a dedicated programme on the Home Service, one which could well be re-broadcast in our era of heightened consciousness of the long-term consequences of colonialism, From Cricket to the Caribbean.²⁵

While Learie Constantine was extraordinary, it is the sixteen talks in The Law in Action series which indicate the standard form of broadcasting on the law in the 1950s. A typical example from the first series is Professor C.J. Hamson of Cambridge on ‘The Liability of Hospitals for Negligence’, broadcast on 6 December 1953. He concluded that,

The observation which a lawyer may properly make is only this: that the law as regards hospitals seems to be changing; that this change is connected with a change in the conception of the function and duty of hospitals; and that such changes have large and important social implications which are only partially and incidentally reflected in the law.²⁶

Barristers in those days were required by their profession to be anonymous on the radio, although their identities were revealed in the book versions.²⁷ They included, for example, a programme broadcast anonymously on 7 November 1954 by Gerald Gardiner QC, later the Lord Chancellor, on Freedom of Contract.

In the foreword to the first series, Lord Asquith explained that,

The guiding principle was that each talk should be based on a recent decision or series of decisions of the English courts which raised questions of general interest: and the governing aim, both in the selection of subjects and their treatment, was to strike a balance between the demands of the professional lawyer and those of the discerning layman, whose increasing interest in the law is a ground for unmixed satisfaction.²⁸

There was to be no ‘talking down’.

In his foreword to the second series, Lord Denning quoted that with approval and added:

the success of the series is significant. It shows that ordinary people take a great deal of interest in the law, even when they are not parties to litigation. This is as it should be. It would be a great pity if the law became so complicated and so technical that it could not be explained to the layman … the law, like everything else, depends in the long run on the support of a strong public opinion.²⁹

In the 1950s, then, BBC Radio gave the opportunity for lawyers and journalists to influence public opinion about the law. Lord Radcliffe explored how best to use this relatively new medium. Professor Hart encouraged critically engaging with, and if necessary standing up to, strong public opinion.

Lord Radcliffe’s 1951 Reith Lectures on the problem of power

In the 1951 Reith Lectures, Lord Radcliffe was given the time and the platform to reach a bigger audience with a broad sweep of thousands of years of history in his exploration of ‘The Problem of Power’.³⁰ The lectures themselves showed his education and intelligence but they read as if he were unaware of the chaos and furore he had caused in India and Pakistan so recently. Indeed, while not addressing Partition, he went out of his way to praise the work of British colonial administrators over the previous century and a half. He objected to the way in which the word ‘Establishment’ was bandied around but his lectures were a classic example of Establishment thinking.

His 1958 postscript for the paperback edition was even worse.³¹ During the decade, Lord Radcliffe had lost confidence in the quality of democracy and of debate in the public square. He regretted not being more precise in his original lectures as he thought that the vague use of language had become a social problem. Trailed as two articles in The Times on 24 and 25 February 1958, this reflection drew an indignant response from Professor Hart in a long letter to The Times, taking issue on five points in particular but the whole tone of Lord Radcliffe’s postscript in general. Hart’s letter was on 1 March 1958. This was a dry run for Hart’s combative response the following year on the Third Programme to Sir Patrick Devlin’s lecture of 15 March 1959. The subject matter of the two disagreements overlapped. Hart began and ended trenchantly, with the first of his five points giving the flavour of his disagreement with Radcliffe:

Lord Radcliffe’s two articles, on February 24 and 25, on the purpose of politics are inspired by a nostalgic vision of society … his condemnation of the ideals, the practices and the ‘tone’ of our form of democracy is on almost every issue vague or ambiguous, and in some instances rests on dubious assumptions as to matters of fact. The general effect of these articles will be to encourage the belief that our society is not really worth defending …

Will you permit me, therefore, to question some of the more obscure counts in this indictment? (I) ‘A meaningless constitutionalism which asserts that anything is all right if it is permitted, nothing is all right if it is forbidden, by an Act of Parliament’. Who identifies morality with existing law in this way? And what reason is there for thinking the identification more widespread now than before? Surely there is discussion about what should or should not be legal or illegal. Why ignore the often stormy divisions on capital punishment, homosexuality, prostitution, AID?³² What is, of course, missing are the passions excited by the worst forms of poverty, slums, disease, and exploitation. These have gone because the laws that permitted them have been changed under the impulse of the sentiments of kindness which Lord Radcliffe thinks so overvalued.

… Of course, facile optimism concerning the future of our society is dangerous and silly. So, too, is facile pessimism.³³

Quite so. We should not take Lord Radcliffe’s lectures as gospel. Hart’s critique is mild compared to a later deconstruction of Lord Radcliffe in his later role as chancellor of the University of Warwick, by E.P. Thompson³⁴ although there has been some rehabilitation of Lord Radcliffe by Professor Neil Duxbury.³⁵

Nevertheless, in 1951, it was a revelation for the public to hear a serving judge, from our highest court, giving radio lectures on politics and the state, and his eight-page foreword to the hardback book version the following year, 1952, remains a first-class guide to broadcasting or even podcasting on law.

The problem of power, according to Radcliffe, is two-fold: ‘what really prevents men who have authority from abusing their authority?’ and ‘what is it, if it is not force, that leads men to give obedience to authority?’ These are good questions, not adequately answered: the essence seems to be to do with national character, culture, institutions, education and experiences but then that covers much of life. Lord Radcliffe does, however, make two good points at the very end of his lectures and book. First, he endorses a view from the nineteenth century in Matthew Arnold’s Culture and Anarchy. Radcliffe explains that Arnold’s

theme is simple. Acts of Parliament, like other actions, are not good or bad just because they are vigorously advocated or because a lot of well-meaning people energetically desire them. Such things can only be judged by bringing to bear upon them the best that has been thought or said in the past about the nature and purpose of human life and testing their value in the light that will thus play upon them.³⁶

Second, his parting message is to, ‘Think it possible, as Cromwell said, that you be mistaken.’³⁷

By now, those versed in jurisprudence will have discerned that Radcliffe is coming close to the territory of Hart’s later monograph on The Concept of Law,³⁸ and that Radcliffe anticipates Hart’s revival of John Stuart Mill in his Listener article and subsequent exchanges with Lord Devlin.³⁹ Those familiar with wider philosophy will also have spotted that this fourth series of Reith Lectures was quite similar, in some ways, to the very first series, by Bertrand Russell on ‘Authority and the Individual’ in 1947.⁴⁰ Russell was of the Left and Radcliffe was usually seen as being of the Right, but they covered much the same ground.

What I most wish to commend from Radcliffe’s reflections comes in his preface to the hardback book. He explains that he had never at this stage in his life written a book but he would like to think that a fresh book of his (rather than essentially the scripts of broadcast talks) would ‘have more balance, it would risk more complicated constructions, it would tend to be more musical, it would certainly have a greater content of allusion’.⁴¹ This is because a radio script is

neither a conversation, nor a speech nor a lecture nor a discourse … The fact is that a broadcast talk is not at all like a conversation … not merely because the talk is a monologue, but because the casual enlargement of ideas, one of the essences of conversation, becomes impossible when there is no exchange of speakers … ⁴²

But then Lord Radcliffe contradicts himself, concluding that, ‘Fundamentally, a broadcast talk is a discourse’. It is fascinating, nonetheless, to see the Law Lord grappling, even after delivering the Reith Lectures, with the genre of such broadcasting, with what he was trying to do and the way in which he was trying, or was constrained, to do it. Eventually, he reached a resolution that could be adopted by teachers in universities and beyond, as well as by legions of bloggers and podcasters.

What I have tried to do is to interest my hearers in certain ideas and to stimulate their curiosity as to the meaning and value of what they have before, possibly, rather taken for granted. My method has been to describe some great work, some significant phase, of the past in order to let the present be seen in relief … I do not want to be a party to the idea that the function of broadcasting on the BBC is to tell people what to think … So the aim of this book is not to inform or to instruct. Nor is it at all its aim to justify or to condemn any particular form of political society. If somebody would use the word ‘stimulating’ about it I should be very content.⁴³

Hart on immorality and treason

This brings us to the most stimulating short talk and article in the history of jurisprudence, Hart on ‘Immorality and Treason’. Hart’s talk was sublime, a fitting finale to the decade of growing coverage of ethical, legal and political dilemmas. It was given a double page spread in The Listener of 30 July 1959 (on pages 162–3). It has been much anthologised, although in a volume edited by Dworkin, The Philosophy of Law, with its succinct opening omitted, in which Hart explains the context of Sir Patrick Devlin’s 1958 lecture and the 1957 Wolfenden Report which prompted it.⁴⁴ Hart’s talk was his first response to Lord Devlin on the relationship between law and morality.

To my mind, the later lectures by Hart and Devlin which take over their books mean that the brilliance of the original broadcast talk has been lost. Many are reluctant now even to call the controversy the Hart–Devlin debate since the recent revelation to the IICSA truth project by Clare Devlin, one of Patrick Devlin’s twin daughters, that she was sexually abused by her father from the age of seven for some ten years from the late 1940s into the 1950s.⁴⁵ While Lord Devlin is likely to be written out of what has been known hitherto as the Hart–Devlin debate, there are two points where he is still needed to explain Hart’s article.

First, Hart’s obscure title of ‘Immorality and Treason’ is because Devlin’s public lecture in 1958 drew an analogy between society defending itself from treason and society defending itself from immorality. Hart was outraged by this. He knew that the pioneering computer genius and code-breaker Alan Turing, with whom he had worked at Bletchley, had helped considerably in winning the war and yet his then unconventional lifestyle had been condemned by the state he had saved, leading to his suicide. Hart is quite right to observe that the realm of sexual acts in private is nothing like treason, called subversive activity by Devlin. The latter has a public aim and public consequences. The former is private and, as the Wolfenden Report memorably explained, following Mill, ‘in brief and crude terms it is not the law’s business’.

Second, Hart hammers away at Devlin claiming that the feelings of the public are sufficient to justify outlawing behaviour if that arouses ‘a real feeling of reprobation … of intolerance, indignation and disgust’. This is what Hart re-casts as public feelings supposedly reaching ‘concert pitch’. Hart is right again to say that if the public feel that way, the response ought to be to critically explore with the public why they think like that, not to convert the prejudice into criminal law sanctions against others who do not share such disgust. It was not clear how Devlin came up with these ‘feelings’ as his test but now we know that he was a sustained abuser of one of his children, it may be that he was consciously or subconsciously invoking the terminology that the public would have used to describe his own behaviour, had that become known. Hart’s solution is that

the legislator should ask whether that general morality is based on ignorance, superstition, or misunderstanding whether there is a false conception that those who practise what it condemns are in other ways dangerous or hostile to society; and whether the misery to many parties, the blackmail and other evil consequences of criminal punishment, especially for sexual offences, are well understood.⁴⁶

Hart’s article is not quite ‘pitch perfect’ in curiously invoking that term, sometimes put as ‘pitch-perfect’ with a hyphen and sometimes without. It features four times in one short section and six times overall. In each case, Hart is referring to what he might have called the fever pitch level of disgust Devlin is describing. It is not a term which Devlin used, however, and it seems, so to speak, off-key here. It may be that the Third Programme’s combination of talks and music has somehow influenced this terminology.

Nevertheless, in only 2,500 words, Hart spoke and wrote compellingly. It is accessible through The Listener archive, where it can be seen in its original setting of a double-page spread.

Given his title, it is worth commenting on significant points which Hart did not make about immorality and treason. On the first, like other contributors to this debate in the 1950s, 1960s and 1970s, he seemed unaware that St Thomas Aquinas had set out what Hart sees as Mill’s principle in the thirteenth century, nearer six hundred than five hundred years before Mill’s On Liberty in the mid-nineteenth century.⁴⁷ The significance of this is that the debate need not be cast as secular liberals such as Mill and Hart against (very lapsed) Catholics such as Devlin. As I pointed out in my teaching and writing in the 1980s,⁴⁸ to the surprise of students, Aquinas had written that,

Law is laid down for a great number of people, of which the great majority have no high standard of morality, therefore it does not forbid all the vices from which upright men can keep away but only those grave ones which the average man can avoid and chiefly those which do harm to others and have to be stopped if human society is to be maintained, such as murder, theft and so forth.⁴⁹

On the second, Hart might have addressed the controversial British execution of William Joyce, ‘Lord Haw-Haw’, for treason in his radio propaganda broadcasts for the Nazis during the Second World War. His conviction was upheld in the courts even though in fact he was not a British citizen, which might be thought to be a fundamental requirement for the offence in question. Joyce was an American citizen.⁵⁰ Moreover, if we look further afield than the UK and the USA, where the talks and subsequent lectures by Hart and Devlin were given, it is by no means obvious that treason is the paradigm case of when law can enforce morality if it is an evil regime which claims to be entitled to defend itself.⁵¹ For example, Hart and colleagues in the Ministry of Intelligence in the 1940s had been rightly encouraging Germans to be double agents and commit what the Nazi state decreed was treason. At the time of Hart’s broadcast in the late 1950s, Nelson Mandela was on trial in South Africa for High Treason in seeking to overthrow the apartheid regime. He was acquitted after more than four years of court proceedings, although later convicted and imprisoned on other charges.⁵² Examples could be multiplied to show that while ‘immorality’ as judged by the predominant view of the times is not as justifiable a reason for the criminal law to intervene in defence of society as treason is, it could be moral even to commit acts of treason against a state that has forfeited any moral authority.

Of course, Hart could not cover everything in a short talk. In what he did say, and in how he argued, Hart’s article was a model of public engagement in understanding the relationships between law, morality and justice.

A media, medical and legal interlude: how radio, The Times and The Listener made a difference in the 1980s

Almost thirty years on, The Times ran a joint article by Professor Ian Kennedy and myself, on 1 April 1987, under the heading ‘This rush to judgment’.⁵³ This was the day before the Law Lords’ hearing of Re B on 2 April, when they authorised the sterilisation of a seventeen-year-old who was described in the litigation, in the language of the time, as ‘mentally handicapped’ or as having the mental age of a five-year-old. In 2010, Ian Kennedy gave the British Academy’s Isaiah Berlin Annual Lecture in which his memory was that it was on the day of the hearing.⁵⁴ But the first word of the article is ‘Tomorrow’.

I well remember writing a piece with my then colleague, Simon Lee, about the legality and ethical propriety of sterilising a young girl who lacked capacity to consent. The article’s publication was timed to appear on the day that the case came before the House of Lords. It was a suitably punchy piece for The Times … What made the case even more remarkable was that, given its huge importance in terms of human rights, there were no cases nor papers before the court, except for the judgment of the court below, and our article – the first and perhaps the only time that a single sheet of newspaper was the only ‘authority’ before the court … seeking to use the media, as Lee and I were trying to do, to argue a case outside the courtroom, in the court of public opinion, is a legitimate activity for educators.

The judges did in fact discuss the Canadian case to which we referred, Re Eve.⁵⁵ It was Andrew Grubb, then of Cambridge, who first kindly alerted us to this Canadian case and, while we were writing about it, he spoke on Radio 4’s Law in Action, explaining this different approach from Canada. Ian Kennedy’s memory is that the judges, egged on by Alan Ward QC, dismissed our article because of the headline, ‘This rush to judgment’, which was the work of a sub-editor, not reflecting the substance of our analysis. We did, however, use the word ‘rush’ twice and we could have phrased it differently, ‘with all due speed’ or ‘without delay’. The Law Lords might have said that we were the ones rushing to judgment. It was true that one day I had not heard of the Eve case or Re B, the next I was writing about them and the next, the Law Lords were being shown what we had written. Our article was, however, also drawing on Ian’s years of thought about the underlying medical ethics and alternative ways of establishing the law, while I had been much involved in radio, television and newspaper commentary on law and morality. We succeeded in making clear that other legal systems handled these matters better. We were calling for something like the Nuffield Council on Bioethics, which duly materialised and which Ian Kennedy chaired. We also conveyed our deep concern about a vulnerable teenager being treated as if society could relax about our duties towards her so long as she could not become pregnant. And we publicised why, of the four options which we presented in the article, the Canadian approaches were preferable to the Law Lords’.

We also made history, as Ian Kennedy indicated. In the good old days, only dead academics were said to be cited in court, supposedly in case living ones changed their views. There is, incidentally, little fear of that, in many cases. Now, we were the go-betweens in a dialogue of sorts between the judges and the judged. After the adjournment for lunch, Lord Hailsham had the good grace to make the point that he had been made aware (presumably by John Laws QC) that we were in court (or, rather, in the Committee Room of the House of Lords) and were not responsible for the headline.

Given the urgency of the case, the judges announced their decision after only a short adjournment but there were to be four weeks before the Law Lords were to give their reasons, Easter intervening on 19 April. The Listener asked me to write on my own an article timed to coincide with their judgments. They gave me a free hand but I thought there was no point in trying to predict their lines of reasoning. It would be better to make a wider point about the public understanding of law. Instead of ‘This rush to judgment’, the phrase I used in my own sequel in The Listener of 30 April was deciding ‘without delay’.⁵⁶ In the 1 April article in The Times, we had ended with the sentence, ‘Issues of human rights deserve more than their day in court.’ In my Listener article, I ended with this question, ‘which will come sooner; the first television coverage of the Law Lords, the first Law Lady or the end of the century?’

These developments came in reverse order, with Baroness Hale in 2004 and the UK Supreme Court being seen on screen from 2011. Technological innovation has been vital in taking listeners and viewers with us in attempts to promote the public understanding of law. Many citizens listen to podcasts nowadays and many take their news from clips on social media. The BBC and other broadcasters were able to show us, for example, Lady Hale giving a summary of the Supreme Court’s judgment in the Miller II/Cherry case, the second major Brexit decision against the government. This dimension of television news and the Supreme Court’s willingness to be live-streamed goes well beyond what radio talks could do in the 1950s in terms of the public understanding of law. It is especially striking when the public can now often see a judge giving her sentencing remarks in cases which have been controversial.

Sumption’s 2019 Reith Lectures and the decline of law on the radio?⁵⁷

On the other hand, we should not lose the legacy of the Radcliffe and Hart talks from the 1950s. Yet, around the same time as Ian Kennedy and I were using the media to address cases before the courts, the BBC described (and still describes on its website)⁵⁸ Lord McCluskey’s 1986 Reith Lectures on ‘Law, Justice and Democracy’ as the first by a serving judge, which is only true if you ignore those 1951 Reith Lectures by Lord Radcliffe on ‘The Problem of Power’.⁵⁹ This Scottish judge, the former Solicitor General for Scotland under the 1974–9 Labour government and a peer from 1976, was a talented pianist who drew on his musicality to make a memorable point about judicial decision-making:

The law, as laid down in a code, or in a statute, or in a thousand eloquently reasoned opinions, is no more capable of providing all the answers than a piano is capable of providing music. The piano needs the pianist and any two pianists, even with the same score, may produce very different music.⁶⁰

After almost the same gap of another thirty years, the BBC asked another lawyer with judicial experience to give the Reith Lectures for 2019. Jonathan Sumption, like Cyril Radcliffe, had gone straight from the Bar to the highest court in the UK, the Judicial Committee of the House of Lords in the 1940s, now in the 2010s, the Supreme Court. Neither the 1951 nor the 1986 series was mentioned by Jonathan Sumption, despite the obvious relevance of their titles to his and despite Lord Radcliffe’s involvement in wider public life while being a Law Lord offering a challenge to Sumption’s thesis that judges are straying more nowadays into the realm of politics.

Ignoring Lord Radcliffe’s pioneering radio lectures is emblematic of the 1950s being a decade neglected even by the BBC which gave him that platform and by his 2019 successor, Lord Sumption, who is an accomplished historian of a different period, the Hundred Years’ War.

Nor did Lord Sumption refer to the 1980 Reith Lectures on ‘The Unmasking of Medicine’⁶¹ by Professor Ian Kennedy, even though Sumption chose medical law as his first example of a substantive area where he thinks judges have become more interventionist, citing the Charlie Gard case.⁶²

In any event, Lord Sumption has often been featured on radio and television in his retirement from the Supreme Court. This might also obscure how pioneering it was of Lord Radcliffe and the BBC back in 1951 for a serving senior judge to be given the prime broadcasting platform. Sir Jack Beatson, a distinguished academic and judge, explained in a speech in 2008 the origin and demise of the Kilmuir rules:⁶³

In December 1955 Viscount Kilmuir, then Lord Chancellor, wrote to the Director General of the BBC. He stated that ‘the importance of keeping the judiciary insulated from the controversies of the day’ meant that it was as a general rule, undesirable for judges to take part in wireless or TV broadcasts. His reason was that, ‘so long as a judge keeps silent his reputation for wisdom and impartiality remains unassailable: but every utterance which he makes in public except in the course of the actual performance of his judicial duties, must necessarily bring him within the focus of criticism’ … But judges have always had a public side, even during the time of the Kilmuir Rules … The Kilmuir rules were abolished by Lord Mackay of Clashfern in November 1987. He saw them as difficult to reconcile with the independence of individual judges. Lord Mackay did not favour a free-for-all. He said that judges ‘must avoid public statements either on general issues or particular cases which cast any doubt on their complete impartiality, and above all, they should avoid any involvement, either direct or indirect, in issues which are or might become politically controversial’.

In this context, it is worth adding that Viscount Kilmuir was Sir David Maxwell-Fyfe, the Home Secretary who encouraged the prosecution of homosexual men in the early 1950s, then asked Sir John Wolfenden to chair a Departmental Committee on whether the law should change, and later disagreed with the committee’s recommendations. On judges speaking out, there are rules for retired members of the Supreme Court if they wish to serve on the supplementary panel, to sit occasionally in any gap between their retirement and the statutory age limit of seventy-five.⁶⁴

One hundred years after women started talking about law on the BBC, we deserve to hear from Lady Hale, the first woman to be president of the Supreme Court, who has now retired. Not that she needed to be retired to speak candidly, as shown by her reply to Lord Sumption’s thesis in a public lecture that year, 2019.⁶⁵ Lady Hale also has the distinction of having been a Law Commissioner, so is especially well placed to reflect on the themes of Radcliffe and Hart from the 1950s onwards, exploring the twin tracks of developing the law through the courts and through legislation.⁶⁶

Alternatively, as Lord McCluskey gave a perspective from the separate legal system of Scotland, Dame Siobhan Keegan, the first Lady Chief Justice of Northern Ireland, could be invited to give the Reith Lectures from her vantage-point at the apex of another distinctive legal system, which has experienced the Troubles, the peace process and political turbulence during her time as a law student, barrister and judge.

The media have changed from the radio-dominated BBC of the early Reith Lectures at the end of the 1940s and the start of the 1950s, through the era of huge audiences for television, and on now to fragmentation of the mass media and the rise and fall of waves of diverse social media platforms. With live-streaming from the UK Supreme Court and all manner of podcasting, the public understanding of law necessarily develops differently in the 2020s when compared to the 1950s. But the BBC has wisely made its Reith Lecture archives available as podcasts and its entire Listener archive available digitally. Through these projects, we can preserve the contributions of Radcliffe and Hart as distinctive legacies from the 1950s of controversial thinking about law in society.

‘Acts of Parliament, like other actions, are not good or bad just because they are vigorously advocated or because a lot of well-meaning people energetically desire them’⁶⁷

This warning by Lord Radcliffe is as relevant in the parliamentary session of 2024/5 as it was at the time of his Reith Lectures in 1951. However wrong he might have been on the problem of power, or in exercising power in the Partition of India, at least Lord Radcliffe appreciated that his role as a broadcaster, especially as a Reith Lecturer, was to stimulate critical thinking in his listeners. This is vital also in the endless debates about law and morals, from Professor Hart’s intervention in the 1950s in support of the Wolfenden Report, through to the current national debate on the proposed legislation currently before Parliament on assisted dying. The BBC, The Listener, The Times and other media have contributed to a long line of thinking about medical law and ethics, from Hansom in the 1950s to Ian Kennedy’s Reith Lectures in 1980, and now to what is known in the media as the Assisted Dying Bill but its formal title is the Terminally Ill Adults (End of Life) Bill.⁶⁸

Whether you are for or against law reform to facilitate assisted dying, and whether or not you prefer to call it assisted suicide, we can all benefit from some assistance in arguing about ethics and law in matters of life and death. Like Lord Radcliffe, we might become gloomy about the quality of argument in the public square on such big issues but a previous debate in the House of Commons on Assisted Dying, on Friday 11 September 2015, was enlightening and uplifting, with some MPs saying they had changed their minds since coming into the chamber because of the quality of other contributions. The speeches are still well worth reading.⁶⁹ The Commons was at its best. Expertise and experience ranged from senior lawyers to senior doctors via daughters and nurses.⁷⁰ One MP after another disclosed how constituents had written and told their stories. There was a real sense of engagement and a clear vote against the bill by 330 votes to 118. This time, on 29 November 2024, Kim Leadbeater MP secured a clear majority of 330–275 in the Commons in favour of her bill.⁷¹ Her bill has been much criticised in its committee stage, however, and its third reading has been postponed until after the May local elections, perhaps because there have been so many issues raised and/or because the issue is so divisive. In the Lords, there will be familiar voices in favour, Lord Falconer and Lord Carey, with some powerful voices against, including Baroness Grey-Thompson, the Paralympian, Baroness Finlay the long-serving palliative care consultant, and Lord Williams.

As two former archbishops of Canterbury (George Carey and Rowan Williams) will be on opposite sides of the debate, and as the latest Archbishop of Canterbury (Justin Welby) has just resigned, it is especially salutary to recall how Basil Mitchell⁷² described the secularist view of Professor Glanville Williams⁷³ on such debates, that we may listen to a social policy expert in Baroness Wootton but that we should not listen to the Archbishop of Canterbury.⁷⁴ This is a brilliant passage by Mitchell, who respects Lady Wootton’s social science perspectives and Glanville Williams’s own views, but who questions whether Williams is right to claim that, ‘For the legislator, it seems sufficient to say that theological speculations and controversies should have no place in the formation of rules of law, least of all rules of the criminal law which are imposed upon believers and non-believers alike.’⁷⁵ The former Lord Chancellor, Lord Falconer, has repeated in the current public debate, and will have the chance again in the Lords, this crass view that people’s religious views should have no place in the national debate.⁷⁶ He was taking aim, in particular, at the first Muslim to be Lord Chancellor and Minister of Justice, Rt Hon Shabana Mahmood KC MP.⁷⁷ But this is not an issue of secular against religious. There is a group, for example, called Humanists Against Assisted Suicide and Euthanasia that has given an impressive submission to a parliamentary committee.⁷⁸ Even while Glanville Williams wished to exclude religious views from debates on the criminal law, the archbishops of Canterbury at the time of the Wolfenden Report in 1957, Dr Geoffrey Fisher, and of its implementation in the Sexual Offences Act 1967, Dr Michael Ramsey, both supported Wolfenden’s liberalisation of the law.⁷⁹

Instead of Baroness Wootton as the archetype of someone who comes at this issue from the opposite perspective to a supposed archbishop’s approach, we now have Dame Esther Rantzen – a media celebrity personally promised by Sir Keir Starmer that he would facilitate a private member’s Bill on assisted dying if he were to win the election. She was distressed that she would not be able to determine the timing and manner of her death. At the time of the bill being proposed, in the autumn of 2024, a mutual admiration society of Kim Leadbeater MP, Sir Keir Starmer KC MP and Dame Esther Rantzen thought that Dame Esther had less than six months to live, which would bring her within the terms of this measure. Dame Esther had been thinking this since January 2023. Then, in December 2024, she announced that she might have years to live, thanks to a new wonder-drug, and she was enjoying life. She seemed to see no issue with the draft legislation being premised on a necessarily speculative prediction of how long she had to live. If the bill had become law a year or eighteen months earlier, she would have authorised the taking of her own life. Now she is inclined to enjoy her potentially longer life. Various people have pointed out the inconsistencies in Dame Esther Rantzen’s musings on the law on assisted dying:

When I was diagnosed with stage four lung cancer in January last year, I thought that’s it, goodbye life. It turns out I was quite wrong. Even though the fatigue which is part of the illness means I can no longer dash around meeting friends and prancing along red carpets as I used to in my television fat-cat days as presenter of the consumer show That’s Life!, my own life is still worth living and enjoyable. The new wonder drug I’m on – Osimertinib, a cancer growth blocker – may hold back the spread of my disease for months, even years.⁸⁰

Rantzen’s and Falconer’s styles of campaigning seem to me⁸¹ to be exactly what Radcliffe warned against when he said that, ‘Acts of Parliament, like other actions, are not good or bad just because they are vigorously advocated or because a lot of well-meaning people energetically desire them.’⁸²

It remains vital, therefore, to have a vibrant and diverse media so that citizens can develop their own critical thinking on these matters of life and death, and on all the issues of social justice in between. Sometimes, this is about pointing out the context of an expression which is being used in the opposite sense to that intended by its inventor. For example, the mid-nineteenth-century poet Arthur Hugh Clough captured imaginations with his couplet, ‘Thou shalt not kill; but need’st not strive, Officiously to keep alive’.⁸³ But this comes from a poem which is satirical, ironic, sarcastic. Clough was taking each commandment in turn and showing how we only pay lip service to God’s will.⁸⁴ It is not enough to be against, or for, assisted dying. Our duty to those who are marginalised is one of assisted living, to live their lives to the full, contributing to the well-being or welfare of a just society, with proper investment in hospices and supporting carers.

We need, in other words, assisted arguing, which only has impact if we also have assisted listening. This is essentially what Radcliffe, Hart and other broadcasters were encouraging in the 1950s. In airing trenchant but well-argued disagreements, BBC Radio and The Listener set the tone for a vibrant public square. In our own times, with diverse media in a digital public square, often without any editorial control and seemingly spiralling out of control more generally, we need to be even more vigilant in questioning both conventional wisdom and any fashionable moralism. Learning from the 1950s, cogent arguments can still help to shape the law’s power to protect those on the margins of society. Social justice requires us to develop our critical thinking, as stimulated by Lord Radcliffe and Professor Hart, who each appreciated the significance of a deeper and broader public understanding of law.

Notes

1. 1. Cyril Radcliffe, The Problem of Power (London: Martin Secker & Warburg, 1952).

2. 2. H.L.A Hart, ‘Immorality and Treason’, The Listener, 30 July 1959.

3. 3. https://genome.ch.bbc.co.uk/schedules/service_third_programme/1959-07-14.

4. 4. https://genome.ch.bbc.co.uk/schedules/service_third_programme/1959-09-07.

5. 5. H.L.A Hart, Law, Liberty and Morality (Oxford: Oxford University Press, 1963).

6. 6. Patrick Devlin, The Enforcement of Morals (Oxford: Oxford University Press, 1965).

7. 7. Basil Mitchell, Law, Morality and Religion in a Secular Society (Oxford: Oxford University Press, 1968).

8. 8. Simon Lee, Law and Morals (Oxford: Oxford University Press, 1986).

9. 9. Neil Duxbury (2010), ‘Lord Radcliffe out of time’, The Cambridge Law Journal 69, no. 10; Robert Armstrong (2004), ‘Radcliffe, Cyril John, Viscount Radcliffe (1899–1977), lawyer and public servant’. Oxford Dictionary of National Biography. https://www.oxforddnb.com/view/10.1093/ref:odnb/9780198614128.001.0001/odnb-9780198614128-e-31576. Tony Honoré (1994), ‘Hart, Herbert Lionel Adolphus, 1907–1992’, Biographical Memoirs of Fellows of the British Academy (PBA 84) 295; Nicola Lacey (2004). A Life of H.L.A. Hart: The Nightmare and the Noble Dream (New York: Oxford University Press).

10. 10. The BBC promoted the lectures as being given by ‘The Man Who Drew the Line’ https://www.bbc.co.uk/programmes/b0902rn9. See further Lucy P. Chester, Borders and Conflict in South Asia, the Radcliffe Boundary Commission and the Partition of the Punjab (Manchester and New York: Manchester University Press, 2009).

11. 11. Devlin, The Enforcement of Morals.

12. 12. Wolfenden, HMSO. See also Wolfenden’s review of Hart’s Law, Liberty and Morality: https://archive.spectator.co.uk/article/5th-july-1963/19/the-crime-makers.

13. 13. Dermot Turing, Prof: Alan Turing Decoded (Cheltenham: History Press, 2015).

14. 14. The Reith Lectures 2019: ‘Law and the Decline of Politics’, BBC Radio Four, 21 May 2019, Reith Lecturer: Jonathan Sumption, Lecture 1 ‘Law’s Expanding Empire’, https://www.bbc.co.uk/programmes/m00057m8 (published in book form as Jonathan Sumption, Trials of the State: Law and the Decline of Politics (London: Profile Books, 2019)).

15. 15. Murphy, Kate.‘ “Careers for Women”: BBC Women’s Radio Programmes and the “Professional”, 1923–1955.’ Women’s History Review 32, no. 6 (2022): 809–27. doi:10.1080/09612025.2022.2138018. See also on another pioneer, Venetia Stephenson: https://www.lawlibrary.ie/about/history/trailblazers-1919-2019-100-years-of-women-at-the-bar/.

16. 16. Robert Megarry (ed.), The Law in Action, a series of broadcast talks, with a foreword by Lord Asquith, vol. 1 (London: Stevens, 1954).

17. 17. Robert Megarry (ed.), The Law in Action, a series of broadcast talks, with a foreword by Sir Alfred Denning, vol. 2 (London: Stevens, 1957).

18. 18. Claire Palley became the first female law professor in the UK in 1970: see Fiona Cownie, https://first100years.org.uk/claire-palley-the-u-k-s-first-female-law-professor/.

19. 19. Jenifer Wayne, This Is the Law: Stories of Wrongdoers by Fault or Folly (London: Sylvan Press, 1948).

20. 20. Wayne, This Is the Law, Author’s note on the page before the contents, un-numbered but effectively p. 4 as chapter 1 starts at p. 7.

21. 21. C.H. Rolph, Living Twice (London: Victor Gollancz, 1974), chapter 10, ‘Family Affairs’, 157–67.

22. 22. https://www.independent.co.uk/news/people/obituary-c-h-rolph-1429112.html; https://www.independent.co.uk/news/people/obituary-c-h-rolph-1432171.html.

23. 23. Learie Constantine, Colour Bar (London: Stanley Paul, 1954); and see also Gerald Howat, Learie Constantine (London: George Allen & Unwin, 1975).

24. 24. ‘Any Questions?’ BBC Light Programme, Friday 9 November 1951, 20.00hrs. https://genome.ch.bbc.co.uk/schedules/service_light_programme/1951-11-09#at-20.00.

25. 25. ‘From Cricket to the Caribbean’. BBC Home Service, Wednesday 16 September 1959. 22.30hrs. https://genome.ch.bbc.co.uk/schedules/service_home_service/1959-09-16#at-22.30.

A conversation between Learie Constantine and Sir Hilary Blood.

Learie Constantine, internationally famous as a cricketer, who lived in this country for more than twenty years, is now Minister of Transport in the Government of Trinidad, his native home. He returned to England for a visit this summer a few days before Sir Hilarv Blood left to undertake work on the constitution of British Honduras.

Sir Hilary spent a great part of his Colonial service in the British West Indies, being at one time Governor of Barbados. He is a devoted cricket fan and in this conversation, recorded during the brief period when they were both in England, the speakers range over two subjects mutually absorbing to them.

1. 26. C.J. Hamson, ‘The Liability of Hospitals for Negligence’, in The Law in Action, ed. Robert Megarry, 1953, vol. 1, 28.

2. 27. The reason for the coyness was to prevent barristers from using broadcasts as a form of advertising.

3. 28. Megarry, Law in Action, vol. 1, v.

4. 29. In Robert Megarry (ed.), The Law in Action, 1957, vol. 2, v–vi.

5. 30. Cyril Radcliffe, The Problem of Power: The Reith Memorial Lectures 1951 and a postscript (London: Comet Books, 1958).

6. 31. Radcliffe, The Problem of Power.

7. 32. AID standing for Artificial Insemination by a Donor.

8. 33. H.L.A Hart, ‘The Purpose Of Politics’, The Times, 27 February 1958.

9. 34. E.P. Thompson (‘A Report on Lord Radcliffe’, New Society, 30 April 1970, reprinted in Writing by Candlelight, 1980, 29–37),

10. 35. Neil Duxbury, ‘Lord Radcliffe Out of Time’, The Cambridge Law Journal 69, no. 1 (2010): 41–71. See also Richard Davenport-Hines, Conservative Thinkers from All Souls College, Oxford (Oxford: Boydell Press, 2022). ‘The Resistance of Cyril Radcliffe’, https://www.degruyter.com/document/doi/10.1515/9781800106857-010/html.

11. 36. Radcliffe, The Problem of Power, 108–9.

12. 37. Radcliffe, The Problem of Power, 110, referring to Oliver, not Thomas, Cromwell.

13. 38. H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961).

14. 39. John Stuart Mill, On Liberty (London: John W. Parker & Son, 1859).

15. 40. https://www.bbc.co.uk/programmes/p00h9lz3/episodes/player.

16. 41. Radcliffe, The Problem of Power, ix.

17. 42. Radcliffe, The Problem of Power, x–xi.

18. 43. Radcliffe, The Problem of Power, xv. For a similar view, see Simon Lee, ‘Balliol Influences’ quoting Anthony Hope Hawkins referring to his tutor, R.L. Nettleship, in Re-envisioning the British State in a Time of Crisis: A Critical Revisiting of the Balliol Connection of Temple, Tawney, and Beveridge for the 21st Century, ed. Chris Baker and Ryan Haecker (Oxford: Temple Books, 2023), e-book, 46. https://williamtemplefoundation.org.uk/temple-books/.

19. 44. R.M. Dworkin (ed.), The Philosophy of Law, Oxford: Oxford University Press, 1977.

20. 45. Beatrix Campbell, ‘ “Our Silence Permits Perpetrators to Continue”: One Woman’s Fight to Expose a Father’s Abuse’, The Observer, 25 July 2021, https://www.theguardian.com/uk-news/2021/jul/25/our-silence-permits-perpetrators-to-continue-one-womans-fight-to-expose-a-fathers-abuse.

21. 46. H.L.A. Hart, ‘Immorality and Treason’, The Listener, 30 July 1959, 162 at 163, penultimate paragraph.

22. 47. On the life of St Thomas Aquinas, see for example Anthony Kenny, Aquinas (Oxford: Oxford University Press, 1980).

23. 48. Lee, Law and Morals, 9. In the rest of the book, I pursue the point that applying the ‘harm to others’ principle depends on what is meant by ‘harm’ and ‘others’.

24. 49. Thomas Aquinas, Summa Theologiae, 1a2ae, question 96, article 2, reply, see, for example, Thomas Gilbey (ed.), Blackfriars edition, Summa Theologiae (London: Eyre & Spottiswoode, 1963–75), vol. 28.

25. 50. As pointed out by Rebecca West, https://scalar.usc.edu/works/the-space-between-literature-and-culture-1914-1945/vol13_2017_glover.

26. 51. See, for example, Michael Lobban, ‘The Travels of Treason’, Modern Law Review 87 (2024).

27. 52. Stephen Sedley, ‘Relentlessly Rational’, London Review of Books 44, no. 18 (2022), September, reviewing Thomas Grant, The Mandela Brief: Sydney Kentridge and the Trials of Apartheid. John Murray, referring to the Treason Trials (1956–61) and the Rivonia Trial (1963–4).

28. 53. Ian Kennedy and Simon Lee, ‘This Rush to Judgment’, The Times, 1 April 1987.

29. 54. Now reprinted in Ian Kennedy, Healthcare Law and Ethics and the Challenges of Public Policy Making: Selected Essays (Oxford: Hart Publishing, 2021), 319–20.

30. 55. Re Eve (1986) 71 NR 1 (Supreme Court of Canada).

31. 56. Simon Lee, ‘Deciding without Delay’, The Listener, 30 April 1987.

32. 57. The Reith Lectures 2019: ‘Law and the Decline of Politics’, BBC Radio Four, 21 May 2019, Reith Lecturer: Jonathan Sumption, Lecture 1, ‘Law’s Expanding Empire’, https://www.bbc.co.uk/programmes/m00057m8 (published in book form as Jonathan Sumption, Trials of the State: Law and the Decline of Politics (London: Profile Books, 2019)).

33. 58. BBC, https://www.bbc.co.uk/programmes/p00gq13t.

34. 59. John McCluskey, Law, Justice and Democracy (London: Sweet & Maxwell, 1987).

35. 60. McCluskey, Law, Justice and Democracy, 7, and http://downloads.bbc.co.uk/rmhttp/radio4/transcripts/1986_reith1.pdf, quoted by Simon Lee, Judging Judges (London Faber, 1988, 19).

36. 61. Ian Kennedy, The Unmasking of Medicine (London: Allen & Unwin, 1981).

37. 62. Sumption, Trials of the State, 11.

38. 63. Speech by the Hon. Sir Jack Beatson, FBA, ‘Judicial Independence and Accountability: Pressures and Opportunities’, Nottingham Trent University, 16 April 2008. https://www.judiciary.uk/wp-content/uploads/2020/08/beatsonj040608.pdf.

39. 64. https://www.supremecourt.uk/uploads/JCPC_guide_to_conduct_for_members_of_the_supplementary_panel_final_0e30a74ad5.pdf.

40. 65. Brenda Hale, ‘Law and Politics: A Reply to Reith’, Dame Frances Patterson Memorial Lecture 2019, Lady Hale, President of the UK Supreme Court, available on the UK Supreme Court, see, for example, p. 14:

like the late and much lamented Lord Bingham, I reject the suggestion that judicial processes are not also democratic processes. They are a necessary part of the checks and balances in any democratic Constitution. And it is also necessary to point out that the history of many countries teaches us that political processes, just as much as judicial ones, can be used to promote quite different values – oppressive or discriminatory ones. The task of any modern Constitution is to keep these processes in balance. But in our Constitution the fundamental principle is Parliamentary sovereignty, which both the executive and the courts must respect. We in the courts will always ultimately do Parliament’s bidding. Forgive me if I don’t quite understand what the problem is with that.

1. https://supremecourt.uk/uploads/speech_191008_66bac81edd.pdf.

2. 66. Brenda Hale, ‘Law and Politics: A Reply to Reith’, Dame Frances Patterson Memorial Lecture 2019, Lady Hale, President of the UK Supreme Court, https://supremecourt.uk/uploads/speech_191008_66bac81edd.pdf.

3. 67. Radcliffe, The Problem of Power, 108–9.

4. 68. Terminally Ill Adults (End of Life) Bill (Bill 212, 2024–5) https://bills.parliament.uk/bills/3774.

5. 69. Hansard, https://hansard.parliament.uk/commons/2015-09-11/debates/15091126000003/AssistedDying(No2)Bill.

6. 70. I have drawn attention to contributions from each of the categories, beginning as the example of a senior lawyer with the newly elected MP, Sir Keir Starmer QC (now KC and the Prime Minister, the former Director of Public Prosecutions), in https://williamtemplefoundation.org.uk/assisted-arguing/.

7. 71. https://hansard.parliament.uk/commons/2024-11–29/debates/796D6D96-3FCB-4B39-BD89-67B2B61086E6/TerminallyIllAdults(EndOfLife)Bill.

8. 72. Mitchell, Law, Morality and Religion.

9. 73. Glanville Williams, The Sanctity of Life and the Criminal Law (London: Faber, 1958).

10. 74. Barbara Wootton, Social Science and Social Pathology (London: Allen & Unwin, 1959), quoted by Mitchell, Law, Morality and Religion in a Secular Society, at 58 and 116.

11. 75. Williams, The Sanctity of Life and the Criminal Law, 208, quoted by Mitchell, Law, Morality and Religion in a Secular Society, at 127 in the last chapter, ‘Some Concluding Comments on the Debate’, 119–36. See also Wootton, Social Science and Social Pathology, quoted by Mitchell at 58 and 116.

12. 76. https://www.thetimes.com/uk/politics/article/labour-rift-as-peer-says-keep-religion-out-of-assisted-dying-debate-5c9hdcbck.

13. 77. https://www.independent.co.uk/news/uk/politics/assisted-dying-shabana-mahmood-b2652637.html.

14. 78. Humanists Against Assisted Suicide and Euthanasia, committees.parliament.uk/writtenevidence/116498/pdf/. Written evidence submitted by Humanists Against Assisted Suicide and Euthanasia to House of Commons Health Select Committee, January 2023 which begins,

Humanists Against Assisted Suicide and Euthanasia (HAASE) was formed by atheists and agnostics frustrated with the characterisation of the debate about assisted dying as compassionate, forward-thinking proponents against archaic religious prejudice. There are profound secular arguments – philosophical, historical, and moral – against changing the 1961 Suicide Act that must be considered.

1. See also their footnote references and the book by their chief executive officer to speak to the committee. Professor Kevin Yuill, Assisted Suicide: The Liberal, Humanist Case Against Legalisation (London: Palgrave, 2013).

2. 79. See for a wider view of the Church of England’s progressive role in the 1950s and 1960s, Grimley, Matthew, ‘Law, Morality and Secularisation: The Church of England and the Wolfenden Report, 1954–1967’, The Journal of Ecclesiastical History 60, no. 4 (2009): 725–41.

3. 80. Esther Rantzen, ‘The Ten Things That Make Me So Happy to Be Alive’, Daily Mail, 28 December 2024.

4. 81. Since writing Law and Morals in 1986, I have identified (for instance in Uneasy Ethics in 2003) what I regard as the main bad arguments which have featured in such debates from the 1950s onwards: to accuse the other side of playing God, to try to win the debate by terminology, name-calling, the slippery slope, the danger of activities going underground or into the back streets if you prohibit them, and the accusation of inconsistency. Nobody seems to agree with me on these, at least not when they are deploying such techniques. Indeed, identity politics has made it all the more likely that people will dismiss the views of others on the ground that ‘you would say that, wouldn’t you, because you are a man/Catholic/white/heterosexual/old’ or whatever characteristics they wish to blame for you having the temerity to take a different view to theirs.

5. 82. Radcliffe, The Problem of Power, 108–9.

6. 83. Arthur Hugh Clough, https://potw.org/archive/potw238.html.

7. 84. In https://williamtemplefoundation.org.uk/assisted-arguing/, I explain that a sermon by an Anglican layperson in the early years of the twentieth century puts this couplet in context. George W.E. Russell preached in St Stephen’s, Walbrook, in words that might apply also today to pollution of lakes, rivers and seas:

The maintenance of human life, the cultivation of public health as leading up to that, is one of the prime duties … yet I fear that during the greater part of English history, almost down to within the last twenty years, the creed of most public bodies with reference to sanitary administration has practically been that of the sarcastic couplet from Clough’s poem, ‘The New Decalogue’:—

‘Thou shalt not kill, but need’st not strive Officiously to keep alive.’

‘Well, our duty as Christian voters is exactly the opposite of that … sanitary legislation … care for a pure water-supply, the improvement of insanitary and overcrowded dwellings, are practical ways’ to make a difference.’

Simon Lee, ‘Assisted Arguing’, William Temple Foundation Blog, 18 October 2024, https://williamtemplefoundation.org.uk/assisted-arguing/; https://anglicanhistory.org/socialism/churchmanship/07.html.

Selected bibliography