What Bill and What Rights?

Stephen Sedley

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:

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