Sir James Munby - The secular judiciary in England and Wales

Sir James Munby, Head of the Family Division of the High Court of Justice in England and Wales

In 2013 Sir James Munby gave a speech in which he said that the law of England and Wales is secular, and that Christianity no longer informs its morality or values. He said that "the days are past when the business of judges was the enforcement of morals or religious beliefs."

The Radio 4 series 'Beyond Belief' explores the place of religion and faith in today's complex world and in an episode 'Christianity and the Law', Ernie Rea was joined by Sir Mark Hedley, Joshua Rozenberg and David McIlroy to discuss the relationship between Christianity and the Law. Listen in full here.

The debate centred around the Keynote Address made by Sir James Munby in October 29 2013 here. He said:

"Happily for us, the days are past when the business of the judges was the enforcement of morals or religious belief. That was a battle fought out in the nineteenth century between John Stuart Mill and Sir James Fitzjames Stephen (Stephen J) and in the middle of the last century between Professor Herbert Hart and Sir Patrick Devlin (Devlin J). The philosophers had the better of the argument, and rightly so. 

The controversy began with Mill’s On Liberty, published in 1859. In a famous passage he set out the classic libertarian argument: "... the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection … the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant." 

Stephen’s riposte to this was Liberty, Equality, Fraternity, published in 1873. He held that “restraints on immorality are the main safeguards of society against influences which might be fatal to it.” He saw the purpose of the law, both criminal and civil, as "promoting virtue and preventing vice". The criminal law, he said, "is in the nature of a persecution of the grosser forms of vice." The debate was reignited by the publication in 1957 of the Report of the Committee on Homosexual Offence and Prostitution (the Wolfenden Committee), which defined the function of the criminal law as being:

"to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others... It is not, in our view, the function of the law to intervene in the private lives of citizens, or to seek to enforce any particular pattern of behaviour, further than is necessary to carry out the purposes we have outlined." 

This time the debate began with the judges. In 1957 Lord Denning, speaking in a debate in the House of Lords on the Wolfenden Report, denounced homosexual acts as “unnatural vice” which “strikes at the integrity of the human race.” Posing the question “Is this conduct so wrongful and so harmful that, in the opinion of Parliament, it should be publicly condemned and, in proper cases, punished?” his answer was emphatic: “I would say that the answer is, Yes; the law should condemn this evil for the evil it is”. 

In 1959 Sir Patrick Devlin delivered his justly celebrated Maccabaean Lecture, The Enforcement of Morals, also attacking the thesis propounded by Wolfenden. His language, if less colourful than Stephen’s, was to much the same effect. He held that “an established morality is as necessary as good government to the welfare of society”, that societies “disintegrate... when no common morality is observed”, and accordingly that “The suppression of vice is a much the law’s business as the suppression of subversive activities; it is no more possible to define a sphere of private morality than it is to define one of private subversive activity.” The criminal law could properly be used to proscribe any immorality to which the man on the Clapham omnibus would react with “intolerance, indignation, and disgust.” His adversary, Professor Herbert Hart, took much the same position as Mill. The debate raged for some time. It died away without any definitive conclusion, but time has shown that Hart had had much the better of the argument. 

A poet famously suggested that ‘Sexual intercourse began / In nineteen sixty-three’. That caustic comment, which Larkin mordantly related to what he called ‘the end of the Chatterley ban’, conceals an important truth. The simple fact is that in so many matters sexual the modern world – our world – is a world which has come into being during the lifetime of many of us alive today. It is a development of the 1960s. 

To the Victorians, homosexuality and adultery (though only, of course, if committed by a wife) were naturally beyond the pale. And so, too, as we have seen was mere fornication. But the narrow Victorian view of human sexuality went deeper. One has only to look at the Bradlaugh-Besant litigation in the 1870s to see a society which in such matters was almost unimaginably different from ours. For those who have grown up in the modern world it is hard to comprehend the immense gulf which separates our world from theirs. 

The moment at which the world changed can, in fact, be identified even more closely than Larkin suggested. The last hurrah of the ancien regime was not so much the failed prosecution of Penguin Books Limited in 1960 for publishing D H Lawrence’s Lady Chatterley’s Lover but rather the famous – or infamous – decision in 1961 of the House of Lords in Shaw v Director of Public Prosecutions, for it marked the end, even if not recognised at the time, both of the ancien regime in matters sexual and of the pretension of the judges to set themselves up as guardians of public morality. 

The defendant published a booklet which contained the names, addresses and telephone numbers of prostitutes, photographs of nude female figures and, in some cases, details of willingness to indulge in what were described as various perverse practices. He was convicted of various offences, including conspiracy to corrupt public morals. 

Upholding the convictions, Viscount Simonds made wide claims for the role of the judges in the enforcement of morality. In what Professor Hart crushingly described as ‘A fine specimen of English judicial rhetoric in the baroque manner’, this distinguished chancery judge and former Lord Chancellor said this: 

"In the sphere of criminal law I entertain no doubt that there remains in the courts of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the State, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for ... there is in [the] court a residual power, where no statute has yet intervened to supersede the common law, to superintend those offences which are prejudicial to the public welfare. Such occasions will be rare, for Parliament has not been slow to legislate when attention has been sufficiently aroused. But gaps remain and will always remain since no one can foresee every way in which the wickedness of man may disrupt the order of society... Let it be supposed that at some future, perhaps, early, date homosexual practices between adult consenting males are no longer a crime. Would it not be an offence if even without obscenity, such practices were publicly advocated and encouraged by pamphlet and advertisement? Or must we wait until Parliament finds time to deal with such conduct?" 

These judicial assertions were, no doubt, in part a response to the report of the Wolfenden Committee. So too, a little earlier, was Sir Patrick Devlin’s Maccabaean Lecture. But they were no more than the dying fulminations of an age which, viewed even from the perspective of little over 50 years, now seems almost as remote from us as Nineveh or Babylon. All that Viscount Simonds feared very soon came to pass."

My earlier post on secularism in Britain here. Sir James Munby in full here.