Here come the judges

Letters

Vol. 20 No. 13 · 2 July 1998

From Anthony Barnett

Conor Gearty seems to have made two fundamental misjudgments (LRB, 4 June). First, he believes that we in Britain live not in the shadow of élite absolutism but in a genuine democracy. Or as he puts it: ‘Now the UnitedKingdom stands alone, as one of the last places where a Parliament of elected representatives can speak conclusively for the people.’ Second, as the quotation shows, Gearty believes that there is such a thing as ‘the people’ – a national voice that has ‘conclusive’ or singular views. These strange beliefs are untroubled by the absence of any evidence in their favour. By the same token, or lack of it, they allow him to attack the constitutionalising of power involved in sharing sovereignty and codifying rights. Such developments, in his view, threaten democracy and, indeed, are driven by what he terms, ‘post-democratic liberalism’ (my emphasis). There is an underlying myth, in all this, of a golden, democratic past.

Three difficulties – conceptual, political and professional – impair Gearty’s review of my book This Time. He and his colleague Keith Ewing have a zero-sum notion of sovereignty. For them, sovereign power resides either with elected politicians or with judges. It cannot be shared. Yet, in a range of ways, sovereignty today is being shared even while it is being attacked by the agencies of the global market (including judicial ones). To establish democracy under conditions of shared sovereignty, power needs to have a constitutional framework, especially for the protection of minorities. The Northern Ireland Peace Agreement contains an institutional commitment to ‘partnership, equality and mutual respect’ and an emphatic section on human rights. While it may have emerged out of an attempt to overcome Ulster’s primitivism, the Agreement represents a more advanced constitutional culture than Westminster’s. Gearty supported the Agreement. Apparently what is good enough for Ireland is not good enough for the rest of us. But it will be.

This leads to Gearty’s second difficulty. He has opposed Charter 88. Yet in ten or fifteen years’ time he will not want to teach his students that Britain should tear up its constitution and return to the royal prerogative. A belief in the need to sustain ‘civil and political pressure’ on the courts pulls him reluctantly towards agreement with the Charter 88 approach, even if I am a victim of his resistance. Thus he singles out the use of the Criminal Justice and Public Order Act 1994 to convict a peaceful, non-obstructive gathering on a road near Stonehenge and criticises the judges for their ruling. I also analyse this incident but focus more on how the Bill was passed. At first it consisted of 117 sections: by the time it received the Royal Assent it had 172 sections and was a hundred pages longer. Most changes were due to late government amendments. Even members of the Lords complained that basic rules of law and order were debated ‘after midnight in an inquorate House’.

In my view, pressure for constitutional change should start from a broader understanding of the structures of power than the one Gearty provides with his focus on human rights law and its hypocrisies. He reflects the partial nature of contemporary constitutional discussion in Britain, and its unwillingness to debate strategies for change. He ignores my chapter about this, indeed, nothing, it seems, can be added to the debate from such a contaminated source. He states that Part 1, which is about 1997, contains ‘little or nothing in an analytical vein’. But I propose at least two novel arguments: that 1997 saw the first General Election since 1966 in which Powellism (carefully defined) was clearly the loser and, second, that public opinion, which in the Seventies would have rejected a tax-raising Parliament in Scotland or a Welsh Assembly, had now shifted to make such reforms possible. This analysis is developed in my assessment of the public response to Diana’s death, which was hardly republican but was not monarchist in the traditional sense. I show that British opinion has shifted towards a written constitution with a ‘hereditary presidency’ – a Swedish phrase – of the kind found in five EU states. My arguments may be wrong, but they are certainly analytical. A new NOP poll suggests they are not so wide of the mark. It shows support for a written constitution at 85 per cent.

Finally, there is academic nervousness. I observe that the standard division of state power into three branches – the legislature, executive and judiciary – is ‘inadequate’ and suggest that accountability is a new branch that cannot be subsumed within them. In theoretical terms, this is one of the most original passages of the book. Gearty is appalled at my iconoclasm and fires a barrage of rhetorical questions aimed at squishing the life out of it. The argument here is a large one, doubtless to be continued – I do not expect the functions identified by Montesquieu in the 18th century to survive unaltered.

Gearty has not resolved his own stance. He suggests that I believe in the ‘People’ with a capital P, although I explicitly attack the notion, while he himself thinks that there is a politically singular ‘people’. He makes the bizarre claim that I am a fashion accessory of New Labour cappuccino-populism, as if he were an underdog, yet reverts to his own New Labour style snobbery when he claims Charter 88 was ‘kicked into life in various basement flats and leftist magazine offices’. Charter 88 began in one magazine – the New Statesman – and none of those involved lived in a basement flat. But suppose that, like millions in today’s Britain, we had done so, would this not be a badge of honour?

Anthony Barnett
London WC2