Free speech for Rupert Murdoch
Stephen Sedley writes about the limitations of a Bill of Rights
It has taken 12 years of Thatcherism to disrupt the extraordinary complacency of the British about then civil liberties and their constitution. Our constitutional arrangements have never been much more than a matter of convention, and what passes for constitutional law has generally been a Panglossian description of the way things are. Our liberties are largely the product of a carry-over into the statism of the 19th and 20th centuries of procedures (notably jury trial) and rights (notably the integrity of person and property) created in an earlier period by a judiciary concerned to consolidate the transfer of power from monarch to entrepreneur. While these prized liberties were being imported and built on by newer nations, they were being continuously eroded in the land of their birth. While British workers led the way in founding unions, British judges led the way in outlawing them, until Parliament intervened. While British radicals and freethinkers spoke their minds, British judges devised new ways of silencing them. The Britain which in 1899 led the way in substituting reformation for punishment as the aim of imprisonment has since led the way in over-long sentences served in foul and overcrowded gaols. The foundation in 1934 of the NCCL was a barometric indication of the state of civil rights and the rule of law when Margaret Roberts was still a child.
Yet it has taken the illiberal and unconstitutional conduct of her three governments to push a written constitution and a Bill of Rights to the head of the political agenda. The radical authoritarianism of the Eighties has finally convinced a majority of people that our constitution and freedoms have the reality, as well as the splendour, of the emperor’s new clothes. For the handful of liberals – Lord Scarman, Anthony Lester, Michael Zander – who have been arguing for decades that we need to have our rights and the government’s powers written down and invigilated by independent judges, the Nineties are looking like the moment of truth. That they were right about the fragility of the rule of law is now clear. But whether they are right about how to fix it in what will soon be the 21st century can no longer be determined by the standards of the post-war consensus years. The very polarities which have proved their premise right are also proving many of their conclusions wrong.
No iron law makes a written constitution and a Bill of Rights dependent on each other. A constitution is the set of arrangements for the exercise of state power. A Bill of Rights, traditionally at least, is a set of ground rules for the protection of individual freedoms. Charter 88 and the Institute for Public Policy Research are promoting the two in harness, as Peter Pulzer explained in the last number of the London Review. Liberty (the NCCL) and polemicists such as Keith Ewing and Ronald Dworkin have confined their attention to a Bill of Rights alone. But the yoking of the two is not accidental. It reflects the cast of mind which two centuries ago in the US found it necessary to temper the creation of a federal state by enacting a succession of essentially minoritarian rights to protect individuals from the majoritarian monster which had been brought into being. This view of the state as the natural enemy of the individual permeates the liberal vision of human rights. It is the philosophy according to which the contents of the European Convention on Human Rights have been selected. It is the impetus which is now bringing the Hard Right into the debate. And it is an essential aspect of the political message – don’t regulate, liberate – which the West is currently delivering to the former Communist states under the flag of human rights. That this is a flag of convenience, that the loudest of all the voices delivering the message belongs to a nation which has wrecked democracies and financed both state and insurgent terrorism from Argentina and Chile to the Philippines and back to El Salvador and Nicaragua, and whose own political system is shot through with jobbery and corruption, is conveniently forgotten.
It is a salutary accident of history, as well as an important aspect of the changed situation now confronting advocates of a Bill of Rights, that the collapse and discrediting of top-down statism in the East and its political failure in the democracies of the West are dovetailing with evidence of the inefficiency and corruption of its competitor, the free market. As a society, however, we in the UK are not called on to make the arid choice between having a poorly-paid job and a cramped home in a state where your vote means nothing but at least there is free health care and schooling, and sleeping rough between dole payments in a country where you are legally the equal of the prime minister and there is nothing money can’t buy. We have the privilege of being able to say we want the good parts and not the bad parts of each. And this is where questions of programme arise.
Charter 88, of which Professor Dworkin is a leading protagonist, has gone for what it has unwisely taken to be an unassailable minimum programme, the 1950 European Convention on Human Rights. It has assumed that anyone who is opposed to the incorporation of the European Convention into our law must be opposed to human rights. By doing this it has exposed itself to a number of powerful criticisms. They are certainly not answered by the elegant Professor Dworkin, whose Counterblast pamphlet argues that a Bill of Rights can’t hurt and, who knows, it might help. This is what the Jewish woman said when she offered chicken soup to the dead man, but it doesn’t impress Professor Ewing. He argues in his Institute of Employment Rights pamphlet that it will give further power to the unions’ historic enemies, the judges, and that the latter’s track record strongly suggests that they will not use it to make life any easier for organised labour.
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Vol. 14 No. 2 · 30 January 1992
Stephen Sedley (LRB, 19 December 1991), in the course of reviewing various proposals for a Bill of Rights for the UK, makes a series of sharply critical assertions about Charter 88. He claims that there is now such diversity in the different proposals for enacting a Bill of Rights, ranging from the IEA to Liberty, that there is ‘already no accepted minimum programme and the ground is being cut from under Charter 88’s feet.’ Further, because Charter 88 supports the apparently obsolete project of incorporating the European Convention on Human Rights into UK law, we are trapped in a ‘time-warp which is making the Charter project … a danger’.
A danger to what? It is important to remember that Charter 88 is a broad-based movement for constitutional reform, not a limited pressure group for a Bill of Rights. The Charter seeks a number of institutional changes, including accountable government, decentralisation and proportional representation. Charter 88 supports incorporation as a bare minimum demand – our aim is for a wider and more radical Bill of Rights as part of a written constitution. We are also committed to building a culture of liberty in Britain: something which is a vital underpinning for formal rights and the basis for a new and more open style of government.
How can we build such a culture of liberty? In the first place, through debate. Thus the Charter has gone out of its way to encourage as wide a spread of arguments as possible. Hence our making the comparison of four major constitutional projects for Britain the centrepiece of our Manchester Constitutional Convention in November; hence also our inviting their authors – James Comford (IPPR), Frank Vibert (IEA), Tony Benn MP (sui generis) and John Macdonald QC (Liberal Democrats) – to share the platform. Far from the publication of new proposals cutting the ground from under Charter 88, they are creating the very ground that we have called for, and we are proud to have inspired them.
Dissatisfaction with our unwritten constitution and our closed and secretive governmental system now spreads across the political spectrum. This has made Charter 88 ever more relevant and successful. The Charter serves both as a radical movement for constitutional change and as the one place where a creative dialogue can take place between the different protagonists of change. It may surprise Stephen Sedley, but we shall have no effective constitutional change unless the IEA and Liberty can talk together to build a genuine consensus for change. If people as able and committed as Stephen Sedley stay outside this process and deride what can be accomplished, we shall still have constitutional change, for it is now inevitable, but it will be a constitution written by insiders and mandarins attempting to salvage as much of the old ways as they can.
Sedley’s specific arguments against a Bill of Rights involve an incoherence that verges on schizophrenia. He argues that, because we live in a very unequal society, formal liberal rights like those exemplified by the European Convention benefit the rich and powerful. Therefore, we should either have no Bill at all or one so radical that it prevents the rich exploiting the law to their advantage. As we are hardly likely to enact a Bill of Rights that will deny free speech to Rupert Murdoch through his corporations, Sedley’s approach is a sham. He may dismiss the Hard Left, but he is following their Mad Hatter logic in this case.
The argument is idle anyway, since we are already subject to the European Convention. But without a domestically-enforceable Bill of Rights, the result is long delays in obtaining redress and an absurd odd-man-out status in Europe. Undoubtedly the Convention should be improved upon. But Sedley’s arguments go well beyond certain well-known defects of the Convention: they challenge the very idea of liberal rights in a market society.
Whoever imagined that a Bill of Rights would not enable the rich and powerful to protect themselves, whether as corporations or as individuals? The relevant question is whether it will protect citizens who are neither rich nor powerful against both state abuse and harms done to their civil rights by others. The analogy is not with a law which forbids rich and poor alike to sleep under bridges, but with one that permits both to do so. No great comfort, but at least the poor can get out of the rein. Stephen Sedley is afraid that a classical liberal Bill of Rights will entrench corporate power and private property in the apparently good cause of protecting the citizen from the state. He is also worried that such rights will prevent a radical government using the state for collectivist and egalitarian legislation. But where is the prospect of such a government? There is no reason why, within the provisions of a Bill of Rights, any social reforms actually on offer should not be accomplished, why wealthy individuals should not be subjected to higher taxation or company law reformed to ensure greater accountability. One cannot expect the reform of law to change society greatly, but equally no Bill of Rights is going to prevent radical change for which there is genuine majority support. So let’s stop debating non-issues and get back to the agenda of constitutional reform.
Director, Charter ’88
Vol. 14 No. 3 · 13 February 1992
In his article deploring the American Bill of Rights and the European Covenant as inadequate, Stephen Sedley (LRB, 19 December 1991) writes that the United States Supreme Court was ‘responding … to the potency of the civil rights movement’ when it decided Brown v. Board of Education in 1954, reversing its previous position that racial segregation was constitutional. ‘Nobody supposes,’ he says, ‘that without the great political swell generated by black people the Supreme Court would have discovered that it had been misinterpreting the Bill of Rights for a century.’ But the civil rights movement and its ‘great political swell’ came after the 1954 Supreme Court decision, not before. Indeed, it was the Brown decision that set the protest movement and the political forces in motion. The Montgomery bus boycott, the sit-in movement at lunch counters, the campaign for voting rights: all these followed the 1954 decision.
Mr Sedley’s mistake undermines his attack on judges as guardians of civil rights and liberties, as it does his sneering at old Bills of Rights as too dated to be useful. The Supreme Court in 1954 was construing the same words of the 14th Amendment, the guarantee of ‘the equal protection of the laws’, as the 1896 Court that held segregation to be constitutional. The justices unanimously changed the interpretation because it was no longer possible, in the mid-20th century, to say as the 1896 Court had that segregating a racial group was invidious only if the segregated group chose ‘to put that construction upon it’. After Hitler it was neither morally nor intellectually possible to regard segregation as a neutral device, implying no contempt for the segregated. In short, Bills of Rights work because judges read their words differently, over time, to take into account changed circumstances and human understandings. That is why those dated clauses of the American Constitution and its amendments have done reasonably well in protecting some rights that I am confident Mr Sedley would value: freedom of speech and press, for example, where the recent American record is so strikingly better than Britain’s.
Mr Sedley offers us the old complaint that judicial review of the constitutionality of state action is ‘undemocratic’. But if recent history has taught us anything, it is that functioning democracy has to be more than majority rule. As a Harvard political scientist, Michael Sandel, put it recently, democracy ‘requires an independent judiciary that can enforce rights, protect the opposition and ensure that not only are elections democratic but that daily life is democratic as well.’
A last point. Mr Sedley calls existing Bills of Rights inadequate because they do not protect ‘the right to health, or to an unpolluted environment …’ There is some irony in someone so sceptical of judges as enforcers of individual liberty wanting to put onto judges the responsibility for new affirmative rights whose scope is so undefined and so much a matter of policy.
Vol. 14 No. 4 · 27 February 1992
I don’t understand why constructive criticism makes defenders of the Bill of Rights orthodoxy so aggressive. Neither Paul Hirst (Letters, 30 January) nor Anthony Lewis (Letters, 13 February) contests my account of the shortcomings in practice of instruments like the Canadian Charter of Rights and Freedoms. I have not argued from these, nor from the enhanced role they give to judges, that such instruments are worthless. My argument is that they are dangerous, but that in the light of experience there is a good deal that can be done to deflect these dangers, and to meet new needs, without forfeiting advantages to which I also drew attention. Why then does Anthony Lewis need to describe my argument as ‘sneering’, which it is not, and Paul Hirst describe my approach as ‘a sham’ and my logic as that of the Mad Hatter? Are they actually interested in doing more for each of their favoured rights instruments than their opponents do for our rights-free constitution – namely, defending it against all comers?
Anthony Lewis leads with his right: I ascribe the US Supreme Court’s 1954 decision in favour of desegregation in schools to ‘the potency of the civil rights movement’ when, he says, ‘the civil rights movement and its “great political swell” came after the 1954 Supreme Court decision.’ It may be good journalism to allocate a single convenient date to the start of such a movement, but it is poor history. Although it is true that the greatest swell of the civil rights movement followed the events of 1954, the movement was considerably older than that. By the later 1940s the new awareness which war service and a measure of prosperity had generated in black Americans had shifted into active resistance to segregation. The NAACP had become influential enough for Truman to address one of its conventions, and the report of his commission, To secure these rights, is credited with having substituted ‘civil rights’ for ‘the Negro question’ in political parlance. The desegregation of the US Army during the Korean war was a further effect and a further cause of resistance.
To take one concrete example of what was forcing these issues onto the post-war agenda, in 1948 a group of blacks and whites broke a colour bar at the Highland Park swimming-pool in Pittsburgh. One of them was gaoled for 18 months for inciting the riot which followed (whites throwing stones and bottles at the swimmers). The campaign continued for a year, attacked by racists while the Police watched, until it succeeded. Rosa Parks’s famous refusal to ride at the back of the bus in Montgomery in 1955, from which Anthony Lewis would like to date it all, was itself not a spontaneous act of rebellion: Rosa Parks was an active NAACP member who had attended the Highlander Folk School in Tennessee, where for twenty years inter-racial ‘social gospel’ workshops were run. The Brown case itself started with a strike of black students in 1951 in Farmville, Virginia, against segregated schooling, and the supporting lawsuit brought by the NAACP’s lawyers was the culmination of a high-profile campaign that reached the Supreme Court as five consolidated cases. By 1954 the message from America’s black people was already very loud and very clear. It was to all this that the Supreme Court in 1954 was responding. It was not initiating, but it was legitimising, and that, as I wrote, is also important.
When, therefore, Anthony Lewis defends constitutional judicial review by pointing to the Supreme Court’s ability to bring its jurisprudence into line with social and moral change, I agree with him, though not with his view of how and why it happens. But what then was the political agenda of Nixon and Reagan in setting out to pack the Court with judges who would be loyal, not to social change, but to the supposed original intentions of the framers of the Bill of Rights and its amendments? I accept the role of judicial review in a democracy, as I said, because governments themselves aren’t too democratic. But will Anthony Lewis accept that judges, too, are risky surrogates for the rest of us?
‘The relevant question’, says Paul Hirst finally and rightly in his letter, is whether a Bill of Rights ‘will protect citizens who are neither rich nor powerful against both state abuse and harm done to their civil rights by others’. Yes: that’s the question I was not only asking but attempting (as Paul Hirst does not) to answer concretely from modern experience. (Anthony Lewis’s answer, that the recent American record on freedom of speech and press is strikingly better than Britain’s, deserves a pot-and-kettle debate to itself.) The probable answer, which I have yet to see refuted, is that it won’t deliver these vital protections unless it’s fireproofed in a way that neither the European Convention nor the US Bill of Rights is. Will Charter 88 (with whose overall constitutional project I have few quarrels) now start seriously to think about reconstructing the European Convention as an effective and principled UK Bill of Rights instead of defending it as a dog defends a bone?
The Director of Charter 88’s Constitutional Convention, Mr Paul Hirst, writes that his organisation is ‘the one place where a creative dialogue can take place between the different protagonists of change’. He then replies to arguments against a Bill of Rights from a distinguished civil libertarian, Mr Stephen Sedley QC, by imputing to him a mental disease. Is this Charter 88’s idea of dialogue? If I were a signatory of Charter 88, I would expect Mr Hirst to resign his directorship forthwith.