No Ordinary Law
Stephen Sedley on the Constitution
If you had asked an 18th or 19th-century Englishman about his country’s constitution, you would not have got the baffled look you get today. The belief that a constitution is a document and that we do not have one is a comparatively recent phenomenon. Mr Podsnap was in no doubt whatever about the reality of a constitution that nobody could actually see:
‘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 . . .
‘It 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.’
There was equally little doubt in the republican minds of the shantymen on the trading ships that had made the likes of Mr Podsnap wealthy.
Oh, Louis was the King of France before the Revolution
Away, haul away, we’ll haul away, Joe
But Louis got his head cut off, which spoiled his constitution
Away, haul away, we’ll haul away, Joe.
It’s therefore worth being cautious about proposed constitutions, whether for Europe or for the United Kingdom, because in one form or another both already have them. You do not have to be a state to have one: every off-the-shelf company, trade-union branch and golf club has a constitution.
In one way or another, however, constitution-making is becoming part of the renewed project of establishing a British bill of rights, part of the original policy behind the 1996 consultation paper Bringing Rights Home, which introduced the Human Rights Act. Now that the rights included in the European Convention on Human Rights have been brought home, is it time to start a family of new rights, and possibly of duties, to go with them?
What the 1997 white paper did not anticipate was the context in which the present discussion would take place. Instead of a comfortable bedding down in our domestic law of the culture of elementary rights to which we and the rest of Europe signed up in the aftermath of World War Two, the Human Rights Act has become the scapegoat for half the things that go wrong in the state and civil society. A paragraph from the Sun reminds one what rational discourse in this field is up against: ‘Tony Blair was attacked last night for refusing to scrap hated human rights laws. The PM’s buddy Lord Falconer yesterday ruled out any change to the act that frees murderers to kill again.’
These characterisations of the Human Rights Act have not come out of the blue. The worry that the act would produce a deluge of litigation led by the wealthy, the litigious, the self-seeking and the self-righteous was one that, a decade ago, I shared. The reality has been encouragingly different. But the segment of the media that had already fixed on scepticism about human rights as its agenda has preferred to ignore reality in favour of what has now become myth, and their scepticism has made it easy and attractive for decision-makers, some of them in high office, to blame the Human Rights Act whenever things go wrong.
For example, we have seen it asserted at the end of an official inquiry that an error of judgment which resulted in very serious reoffending had been made because human rights considerations had put prisoners’ interests before public safety. Part of the media chose to report this as the doing of the Human Rights Act. Yet, as both the Joint Committee on Human Rights and Lord Falconer’s own consequent review of the working of the act made clear, the act sets no such priority. Not long afterwards, Falconer himself, prompted by a press report that the police were unable to issue photographs of prisoners on the run because it would infringe their human rights, described the decision as ‘bonkers’, before discovering – inevitably, as he ruefully admitted – that the internal police guidance which had caused the problem had nothing to do with human rights.
You would not have learned from most of the press coverage that, in the first five years of the act’s life, the courts reinterpreted legislation to make it convention-compliant in not more than a dozen cases; that they made the same number of declarations of incompatibility; and that the government accepted and acted on all of these.
So instead of being able to build on the foundation of an innovative statute which has begun to change the way people relate to each other and to the state, support for human rights has found itself in a posture partly of defence and partly of denial. Its opponents, by contrast, have nothing to defend or apologise for. They can erect any new edifice they please. Or can they?
The hastier proponents of scrapping the Human Rights Act have had to confront a number of legal and diplomatic realities. Scrapping the act will not relieve the UK of its obligations under the convention. Nor, unless the devolution settlements are going to be disrupted, will it relieve Scotland, Wales and Northern Ireland of their statutory obligations to give effect to convention rights. But withdrawing from the convention would mean leaving the Council of Europe and the European Union, both of which make adherence to the ECHR a condition of membership. There are of course those who would like this to happen. But there is a very large, if unadmitted, centre ground of agreement that, in one form or another, the convention rights have to remain not only part of our international obligations but part of our domestic law. Indeed, one of the early objections to the Human Rights Bill was that it was unnecessary because our law already vouchsafed the convention rights.
The dialogue has correspondingly settled not on repeal, except as a way of clearing the decks, but on enhancement – a process, incidentally, explicitly envisaged both by Article 53 of the convention and by Section 11 of the Human Rights Act itself. David Cameron advocates replacement of the Human Rights Act with a bill of rights and responsibilities entrenched against repeal. Gordon Brown advocates a new constitutional document ‘in parallel’, as the recent green paper puts it, with a bill of rights and duties. The Liberal Democrats advocate a convention-plus model.