What Bill and What Rights?

There is no reason in theory why the current relationships between legislature, courts and executive government should not continue indefinitely. The tensions between the component elements of the state have never in three centuries reached the point of fracture; indeed, because each element depends on the others, there is a governing incentive not to let this happen. If such à balance were to be upset, it would almost certainly be from outside: at its crudest, by a coup; at its most insidious, by the absorption first of government and Parliament and then of the judiciary by an initially legitimate but unscrupulous political force. In constitutional terms this was the story both of the Soviet Union and of prewar Germany: the turning-point in each case was the collapse of freestanding political, administrative and judicial institutions into a unitary state machine controlled by a single party. No prescriptive document can stem such a tide: the Nazis simply swept the Weimar Constitution aside, while Stalin’s 1936 Constitution was a living lie. But democracy is not like an electric light, either on or off: it can flourish, or it can be cramped and distorted. Its ability to thrive is more often a question of degree than of kind.

Effective written constitutions have been those which marked a decisive break with a nation’s past: that of the United States, creating a new federal system after a war of independence against the British Crown; that of the first French Republic following the cataclysmic revolution of 1789; the English Bill of Rights of 1689, cementing the settlement of decades of political upheaval and civil war which had finally done away with the autocratic claims of the monarchy; the constitutions marking the independence of former members of the Empire – India in 1947 and later the Caribbean states (although they were handed down from Whitehall); and most recently the new South African Constitution. Other independence constitutions – notably those of Britain’s former African colonies – have not been proof against usurpation by autocracy or military coup. But all of these can be contrasted with the cosmetic constitution created not necessarily out of cynicism (as Stalin’s was) but more often in an endeavour to give the appearance of national unity as a first step back from chaos. The French Constitution of 1946, which was little more than a catalogue of aims running from the left to the right of the political spectrum, is an example.

Written constitutions cannot change the world; rather, changes in the world have brought about the writing or rewriting of the constitutions which have thrived, while those simply slotted into an existing polity become absorbed by it and change little or nothing. But while it is necessary to acknowledge these things, it is not sufficient to do so – first because the viability of a constitution depends critically on whether the will and the means exist to enforce and adapt it; secondly because there is at least one modern example of an instrument, the Canadian Charter of Rights and Freedoms, which has not so much reflected as created major political change; and thirdly because nothing is certain until it has been attempted. In Britain the push, or perhaps the drift, towards a written constitution is becoming more perceptible, partly in consequence of the work of pressure groups and partly because of the promise of the new Government, enshrined in last month’s Queen’s Speech, to devolve powers to Scotland and Wales and to enact a Bill of Rights. If the monarchy decides to change its own constitutional status, a further ground will come into being.

A Bill of Rights is not a necessary part of a constitution: the Canadian Charter, although introduced by a Constitution Act, is freestanding, while it is a historical accident that the United States’s Bill of Rights has taken the form of a series of amendments to the Constitution. But to the extent that rights are conceived as protections for the individual against the power of the state – as they are in the 19th-century liberal paradigm to which we are heirs – instruments enacting them in broad and general terms have a constitutional dimension. Equally, constitutions which have no content of explicit rights can have rights read into them. In this decade, the High Court of Australia has read into the Constitution’s provision for a democratic franchise a personal right of free speech which can trump legislation.

Perhaps the strongest reason, however, for the introduction of a written constitution is one to which attention is not always directed: the enduring and fundamental need to keep party and state distinct. In his 1951 Reith Lectures, Lord Radcliffe recalled Locke’s extraordinary confidence in the responsiveness of Parliament to the will of the people, and commented:

It is only fair to Locke to say that, writing at the end of the 17th century, he did not foresee the extent to which the closely organised political party or caucus would invalidate the theory of Parliament that he was so eloquently expounding. It is a very instructive piece of our political history to note how attitudes towards organised party have changed. In the 17th and 18th centuries organised party was not respectable: it was called faction. It was regarded as unfair to the process of Parliamentary debate. (‘Avoid faction,’ wrote Chatham’s grandfather to his son, ‘and never enter the House prepossessed: but attend diligently to the debate and vote according to your conscience.’)

It is still the law of Parliament and a part of our Constitution that an MP’s vote is to be cast neither for locality nor for party but for the good of the nation and according to conscience. Although the courts have no jurisdiction to enforce this duty, they have had to consider whether the party system which operates very similarly in local government is lawful. In a judgment exemplifying the common law’s amalgam of pragmatism and legal principle, the Master of the Rolls, Lord Donaldson, held that councillors were entitled to vote according to a party whip so long as they considered, at each vote, whether their conscience compelled them to break ranks. The reality which this doctrine recognises is that the grip of party remains firm in central and local government and will do so for as long as the voting system favours single-party majorities.

As a consequence, the historic vindications of some of our fundamental freedoms by the courts of law can be reversed with relative ease. Lord Radcliffe again:

Such victories could never be won against the force of anything sanctioned by an Act of Parliament, because that is the final law in our courts and every judge must give effect to it. Now that the executive and the lawmaking power are to all intents and purposes the same, because both powers have fallen into the same hands, those of the ruling political party, these victories do not stand for the same kind of security as in the past. An Act of Parliament can reverse them at any moment.

Have things changed in the last half-century? Certainly, the judicial arm of the state has become more vigilant in its attention to public administration, and the public has welcomed this. Parliament itself has created the offices of Ombudsman for central and local government, giving them jurisdiction to investigate maladministration falling short of legal error, a matter reserved for the courts. But the domination of the legislature by a party-controlled executive has, if anything, been consolidated. As the political scientist and MP Tony Wright has written:

It is important to understand how parties have substituted for a constitution in Britain. They have filled all the vast empty spaces in the political system where a constitution should be and made the system in their own image. A hundred years ago Dicey (at least in one mood) explained away these spaces, and the potential for arbitrary government contained within them, with reassurances that governments would only do what the electorate wanted or permitted. This doctrine was happily taken over by the organised parties of the 20th century to sustain their governing legitimacy and embellished with further doctrine about mandates and manifestos. In this way, so the traditional arguments went, it was possible to combine the strong executive character of British government with a simple mechanism of democratic accountability, an arrangement buttressed by a political culture which completed a circle which had no need or room for elaborate constitutional rules of a more formal or entrenched kind. So the Constitution was made up as we went along, with the parties doing most of the making up.

  This is why the landscape of British politics is so completely dominated by party, unmentioned constitutionally yet basic to everything that moves. It underpins everything from the arrangements for political broadcasting to the selection of magistrates. Institutions and procedures of all kinds are remade in the image of party. Much of this is necessary and beneficial in achieving balance and reflecting political realities (though again, I readily concede, at the expense of minority parties who get the droppings from the carve-up). However, in other respects I believe it is profoundly debilitating in its effect on democratic politics.

‘Parliamentary sovereignty,’ Tony Wright has also written, ‘provides a cloak of legitimacy for executive and party dominance.’ If this is heresy, it was shared in his last years by that most sanguine advocate of Parliamentary supremacy, Albert Venn Dicey, who denounced ‘the admitted and increasing evil of our party system’, and also by Lord Scarman in his 1988 Radcliffe Lectures:

We have achieved that total union of executive and legislative power which Blackstone foresaw would be productive of tyranny ... The gap ... in the existing Constitution is the lack of checks and balances within the structure of our Parliamentary government and the absence of legal safeguards against the abuse of Parliamentary power. Parliamentary government has been transformed into government by the political party which by enjoying a majority in one House of Parliament has its hands on the controls of executive and legislative power ... The judges will maintain the rule of law, but cannot prevent government from changing the law, whatever the nature of the change.

It may be that, at least in cases where clear evidence emerges, the courts have the jurisdiction to stop the use of government powers for party political ends. There is no reason in principle why an order of prohibition should not be used to prevent a minister from using the facilities of his department to promote his, or his party’s, own reelection, were such a thing to happen. In 1989 the High Court entertained without demur a challenge by Greenwich Council to ministers who were using public funds to publicise what the authority claimed was the political case for a controversial tax – the poll tax – but what the Government successfully contended was factual information about the effect of that tax. But the jurisdiction represents no more than a fire-brigade action where a clear constitutional delineation, such as we lack at present, would be a serious attempt at fire prevention. It can do nothing, it appears, any more than the Speaker of the House can, to stop the use of wrecking amendments and filibustering techniques to talk out a Bill which has all-party support, even when those measures are employed by an MP who is taking payments from a company or an industry whose activities the Bill seeks to regulate. And while, as Chief justice Holt observed nearly three centuries ago, ‘an Act of Parliament can do no wrong, though it may do several things that look pretty odd,’ there is nothing the courts can do in advance, and little that they can do retrospectively, to prevent the erosion by statute of constitutional norms.

Reflecting on the implications of this situation for the rule of law and for fundamental rights and freedoms, judges have proffered solutions of two apparently very different kinds. One, advanced by Lord Woolf and Sir John Laws, is based on a fresh paradigm of constitutional law – fresh at least in this country, though familiar elsewhere. It looks beyond the Diceyan datum line of a supreme and unchallengeable Parliament and asks where a Parliament derives its authority to legislate and to govern. It comes, they argue, from a framework of unwritten and largely unspoken but well understood principles which situate Parliament within a polity that includes independent courts of law and fundamental freedoms of which Parliament is not the donor but the trustee. This, many people think, must be right if Parliament is not simply to be the elected successor of the regal autocracy which was unseated in the course of the 17th century. Indeed, although the issue is posed perhaps more sharply now than at any time since the coming of the universal adult franchise, the principle at stake has been recognised in this country for eight centuries or more. John of Salisbury, writing during the 12th century, recognised that law was not an end in itself but a means to the greater end of justice, and asserted that the king as lawgiver was no more than the instrument of justice. In the next century, Bracton asserted that the king, though not subject to human authority, was subject to God and the law, for it was law that made a king.

It is perhaps fitting that our common law and statutory Constitution, which as we enter the next millennium still possesses no formal concept of the state and continues to express all governance as that of the Crown, should carry with it the same strictures that Bracton and John of Salisbury were able to apply to the Crown when it enjoyed much the same degree of power as Parliament today deploys in the Crown’s name. The question is whether, as commentators from Locke onwards have contended, it is with the people alone that any final resort must lie, or whether the courts as sovereign arbiters of law have it in their power – or should have it in their power – to uphold or restore legality if Parliament should ever violate it.

The postulate of a total legal order of which Parliament forms only a part is a giant’s stride towards such a system, but it is still necessary to demonstrate why, in such a situation, the courts have a moral or constitutional right to the final word on fundamental questions of democratic governance. In Canada the question no longer has to be asked. The 1982 Charter of Rights and Freedoms, enacted by a sovereign Parliament, voluntarily ceded to the courts the power to decide whether Parliament’s enactments are consistent with the Charter and to strike them down if they are not. It requires the courts to test the constitutionality of a measure which restricts Charter rights by deciding whether the restriction ‘can be demonstrably justified in a free and democratic society’. It is hard to think of a more open invitation to make political judgments; and yet the Canadian Supreme Court has developed in little more than ten years a lawyer-like and sophisticated jurisprudence of constitutional adjudication. It has also been heavily criticised, as has the Charter itself, for switching the mass political processes of a democracy into the fragmented and mercenary business of litigation. Both things, however, may be true.

It is not always remembered that the Constitution of the United States, by contrast, nowhere accords to the courts a power of judicial review of legislation. The power was derived by the Supreme Court itself from the simple fact that a constitution which contained a Bill of Rights couched in language commanding or forbidding Congress to legislate to particular ends had to be enforced by some means, and the only place this could be done was in the courts of law. The logic has seemed inexorable to Americans since then. It has also furnished a model for the High Court of Australia, which during the Nineties has embarked on a remarkable process of constitutional adjudication with practically no visible means of support in an elderly Constitution which, apart from providing for parliamentary government, says nothing at all about fundamental rights and freedoms. The High Court has held that parliamentary government is necessarily premised on a franchise of citizens who are free to exchange and debate ideas. So far so good. But when the Australian Parliament passed a law not unlike our own Representation of the People Acts, preserving full and free media coverage of election issues and guaranteeing free airtime for all parties, but forbidding those with the money to do so from buying up television advertising to promote one or other party’s cause, the High Court struck it down as unconstitutional. Its reasoning was that the limitation was an undemocratic fetter on free speech. This judgment echoed a series of decisions by which the United States Supreme Court has struck down repeated legislative attempts to produce a more level electoral playing-field by limiting expenditure on election campaigns. These decisions in turn have contributed to a body of law which has allowed the First Amendment (the right of free speech) to dominate American life, rendering the protection of the law of libel almost worthless and – most recently – prompting a Californian court to grant public access to executions.

These judgments are founded on a tenable view of the implications of free speech. But it is certainly not the only view. One of at least equal cogency is that freedom of expression in a world of electronic mass communication is not the same thing as the traditional freedom to express your views from a soapbox in a public park; that freedom of expression has an organic link with freedom of information; and that the power enjoyed by those relatively few individuals and interests with access to the media of mass communication and mass persuasion must respect the right of others not to be overwhelmed with the views of the already powerful, or fed a one-sided or distorted view of things – in other words, must respect their right to information. If a parliament legislates to this end, however controversially, can a court substitute its view of free speech for theirs without trespassing into the domain of politics and jeopardising its claim to legal objectivity?

Those who argue for the assumption by the English courts of a power to review legislation on grounds of fundamental principle have to be able either to justify the course taken by the High Court of Australia in legal terms or to offer some guarantee that the same thing could not happen here. It is a different thing if, as in Canada, the legislature itself hands the power to review primary legislation to the courts, or if, as in the United States, such review is the inexorable product of the Constitution itself. In these countries, for better or worse, the courts will have the last word, although only by explicit criteria laid down through the democratic process and (in Canada) subject to a power of legislative override. But it is the Australian situation which comes closer to our own, for there the assumption of power by the court has gone well beyond what the Constitution either says or implies. Free to go whichever way it chooses in territory uncharted by any constitutional text, the High Court has gone in a variety of directions, some entirely unexceptionable but one at least idiosyncratic and politically contentious.

This explains the attraction of the second approach – to put it in writing. As its most distinguished and longest-standing advocate, Lord Scarman, argued when he delivered the Radcliffe Lectures eight years ago: ‘we need to incorporate into our Constitution the principle that the source of power is the people and that the powers of government are the people’s powers. We need a constitutional definition of the powers of government and a declaration of those fundamental rights and liberties which it is the constitutional duty of government in all its three branches to protect and to cherish, and machinery for enforcing the duty.’ The immediate attractions of this are obvious: certainty, clarity, principle. Its drawbacks are, however, almost as obvious. Such an instrument has to be negotiated with and by an infinite range of interests and viewpoints; among them there will be winners and losers according to the balance of power at the moment of enactment. Simply to put in writing our arrangements for the distribution and exercise of state power at a point of history where no comprehensive new consensus has emerged is to risk consolidating state power wherever it happens at that moment to reside. Constitution-making is for life, not just for Christmas. Whatever is enacted will become fixed for the foreseeable future unless it is simply to be susceptible to the whim of succeeding Parliaments.

Although Lord Scarman did not consider it necessary to adjust the separation of powers, others think it is. Very recently Lord Steyn added his weight to the argument that the office of Lord Chancellor, as head of a department of state and speaker of one of the Houses of Parliament and head of the judiciary, is constitutionally untenable. His proposal that the Lord Chief Justice should be head of the judiciary is simple enough, but it would mean that instead of relying on the resources of a department of state the judiciary would have to have – as it does in the United States – a full apparatus of self-government. Any such apparatus requires a budget, and the source of any such budget must be public funds. Either, therefore, the system of justice must be self-financing through court fees and the like, or the Treasury must continue to fund it. Both schemes have evident drawbacks, but the question and its solution matter to the future independence of the judiciary.

A similar question hangs over the office of Attorney-General. How feasible is it in reality to take important decisions about prosecutions or to give advice solely in the public interest when the decision-maker is a member of the government and inevitably sensitive to its interests? It is only if those two interests are the same thing (as the jury which tried Clive Ponting was directed they were) that the problem disappears. But to postulate this is to take the fundamental risk of substituting party for state. The Constitution the British bequeathed to India took no such risk: it made the office of Attorney-General independent of government. Not long after independence it was amended to permit the holder of the office to address Parliament. Can it be that difficult to think of doing the same for ourselves?

Opinion polls on the question of a Bill of Rights seem consistently to indicate a desire for change. What they do not and cannot answer are the questions: what bill and what rights?

Within a few months, limited constitutional reform is now promised, involving the devolution of powers to Scotland and Wales and the incorporation of the European Convention on Human Rights as a first step towards a domestic Bill of Rights. The Convention, which will soon be half a century old, is showing both its age and its durability; in any event, it is all we have. We do not know whether it will be enacted on the New Zealand model, as a simple gloss on such legislation as will tolerate it, or entrenched, on the Canadian model, as a governing set of standards to which legislation must yield unless Parliament has expressly overridden it. Each model continues to give the legislature the last word; but each compels the lawmaker to face the opprobrium of seeking to maintain legislation in the face of an adjudication that it violates fundamental rights or freedoms. The differences may in the end be of degree rather than kind, especially if our courts show the will evinced by the New Zealand Court of Appeal under the presidency of Sir Robin Cooke to invest the rights acknowledged by Parliament with remedies by which it has always been the obligation of the courts to vindicate rights.

But what really matters is the content of a Bill of Rights, and even more than its content, its philosophy. The European Convention, part of the painful reconstruction of civilisation in Europe after 12 years of Nazi barbarity, looks back to the 19th-century liberal view of rights as shields for the individual against the power of the state. This remains a necessary part of any Bill of Rights, for reasons I have touched on. The Convention also looks forward to a welfare state in which positive rights exist – the right to education, for example. In doing so, it anticipates a series of further calls on the state, which though sometimes segregated as ‘social and economic’ rights are potentially no less real. In his Reith Lectures, delivered the year after the Convention was drafted, Lord Radcliffe included in our fundamental rights ‘the bundle of rights that depend on National Insurance’ even though these were entirely Parliamentary and very recent in origin. Given the inclusion of education in the European Convention, it is difficult to maintain a classification of fundamental rights which excludes those that call on the state to fund them; yet it is equally difficult to erect a battery of such rights which only a state with both the necessary wealth and the necessary inclination could deliver. This is a function of future debate which will start from, rather than stop with, the enactment of the Convention.

Once such a debate is under way, a number of questions are thrown up. Ought we to recognise a basic right to live free of fear? A right to a wholesome environment? A right to health? Rights to food and shelter – which are arguably more basic than even the right to education? A right to information? None of these is excluded by the philosophy of rights, but none of them finds a place in the European Convention, simply because none of them seemed to the framers to be necessary or appropriate in 1950.

Some of these rights can be argued for as juridical extensions of what is already in the Convention. The High Court of India, for example, has already responded to the scandal of environmental degradation in that country by reading into the constitutional right to life a right not merely not to be killed unlawfully but to enjoy tolerable environmental conditions of existence. It has also devised powerful and novel mechanisms for carrying its orders into effect. Its jurisprudence may well be a model for others. The United States Supreme Court has over a number of years dealt with abortion, which the Constitution does not mention, as an aspect of privacy, which the Constitution does not mention either, but which the Court has found to be a value implicit in the Fourteenth Amendment. This maybe classed as the fabrication of jurisdiction, but it illustrates a key judicial function: a readiness to respond to justiciable issues which legislatures will not touch or cannot agree on or – just as seriously – on which they legislate in disregard of minority interests. But equally – and the debate must address this too – there is nothing in any of the texts I have been considering to block the road taken by the High Court of Australia towards free speech for the wealthy. Are principled outcomes even more important than principled inputs; and if they are, how does an instrument based on principles seek to control outcomes, except by a final parliamentary override?

Other rights, if we are to treat them as such, throw up still more basic questions. The right of privacy, which does feature in the European Convention, was probably conceived as a right not to have the state prying into one’s private life except for good and necessary reasons. But in the decades since the Convention was first signed, while the threat from the state has remained real, the mass media have overtaken it as the major threat to personal privacy. A paradigm which poses rights as shields only against the state has a limited contribution to make to the protection of individuals from intrusion into their personal space in the world of the 21st century. The European Court of Human Rights has attempted to keep pace with this reality by insisting on the obligation of the state not only to respect rights but to pass laws to make sure that private interests respect them too. But is it enough? Faced with a void in the Parliamentary will to legislate in defence of privacy, distinguished lawyers – the present Lord Chief Justice among them – have argued for the courts of this country to do what those of France and Germany have already done and to meet a pressing social need by introducing a tort of unjustified invasion of privacy. In a future legal order predicated on a Bill of Rights, to leave it to the legislative arm of the state to regulate the activities of private interests in order to protect the rights of others may be to drain the judicial function of meaning: for where the United Kingdom comes under a treaty obligation to rectify breaches of the Convention found by the Strasbourg court to have occurred, no domestic judicial power, however sovereign, can compel an equally sovereign Parliament to legislate if it does not wish to. It remains to be seen what privacy laws Parliament will now choose to enact, and who will be constrained by them.

The patriation of the European Convention calls for a new and different approach to the responsibilities of state and private bodies for the violation of individual rights – especially if it is to be succeeded by a more ambitious domestic Bill of Rights. The state-versus-individual paradigm needs to make way for a concept of rights enforceable by the courts against invasion from whatever quarter. This may take either or both of two forms. It may consist of a reformulation of relevant rights to make it clear that remedies are to be given for their violation whoever violates them. It may take the form of an enlargement of the state’s obligation to give a remedy so as expressly to include the courts in a definition of the state. Indeed, since the second of these steps has a bearing on more than simply the state-and-individual issue, there is much to be said for treating them as complementary rather than alternative. There is still more to be said for beginning to regard rights not as personal possessions but as part of a pattern of social obligations.

The recognition of the courts as secondary makers of law as well as primary interpreters of it is perhaps the main thread that has run through these discussions of our Constitution. I have suggested that this role has been historically – though not universally – respectable and continues to be important in our development and functioning as an advanced democracy. The same is likely to be true in the coming years as our jurisprudence constellates with that of other nations in the common law world and on the continent of Europe, and as the individual in our society faces new pressures from new sources. To the extent that Parliament is able to purge itself of the taint of corruption – the purchase of MPs’ judgment and services cannot be described as anything else – and to function as a crucible of open public debate and decision-making; to the extent that it can assert its control over ministers and their departments: to this extent people will cease to have to look to the courts for protection and redress. We have inherited a Civil Service, one of the greatest creations of the Victorians, of high intellectual calibre and with exemplary standards of service and probity. Although by the use of prerogative power, many old Civil Service departments are now organised as semi-autonomous Next Steps agencies, and although the abolition of jobs for life will mean that civil servants spend more time than they should looking over their shoulders, its standards are still there to be nurtured. But the need for active courts of law will never cease to be an essential element in a constitutional democracy, whether the constitution is written or, like ours at present, understood – so long, at least, as our understanding of it is a little fuller than that of Mr Podsnap:

  ‘And Do You Find, Sir,’ pursued Mr Podsnap, with dignity, ‘Many Evidences that Strike You, of our British Constitution in the Streets of the World’s Metropolis, London, Londres, London?’

  The foreign gentleman begged to be pardoned, but did not altogether understand ...

  ‘I merely referred,’ Mr Podsnap explained, with a sense of meritorious proprietorship, ‘to Our Constitution, Sir. We Englishmen are Very Proud of our Constitution, Sir. It Was Bestowed Upon Us By Providence. No Other Country is so Favoured as This Country.’

Bestowed on us by providence it may have been, but it will be by judgment, not by luck, that our protean Constitution continues to serve us in the years to come as well as it has done in the past.