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.
He cites what has happened in Canada, where the Supreme Court has held that the newly entrenched freedom of association did not render unconstitutional Canada’s draconian (and highly statist) back-to-work legislation on strikes. He might have added that the same court had earlier struck down a law against Sunday trading by upholding the entrenched right to freedom of conscience in favour of a supermarket chain which wanted to work its employees seven days a week.
Professor Dworkin, who is celebrated for his advocacy of the view that there is a ‘right’ answer to legal questions, would no doubt respond that this is why judges are there, and why Professor Ewing is not a judge: in other words, that if you argue from outcomes rather than from principles the only people you will carry with you are those who shared your outlook to start with. I do not believe this to be a sound or even a relevant argument. Moreover it is based on the storybook view that legal reasoning proceeds from the cold ascertainment of facts, via the application to these of received principles of law, to the distillation of a ‘right’ result. The truth is commonly the reverse: in many cases, especially those with a wider than legal agenda, the judge knows before he (rarely she) gives judgment what outcome he would like, and his findings of fact and holdings of law will so far as decently possible ensure that that is where he arrives. If judges reach ‘right’ answers, it is usually because they have started, not finished, with them.
Left-wing critiques of judicial decision-making often fail to grasp the complexity of judicial aims and the divergences that may exist between those aims and the myopic ends of the politicians for whom the judges probably vote. The judiciary may be reactionary, but it is not the Tory Party in horsehair, and it is eminently capable of biting the hand that feeds it. It also possesses sensitive political antennae. This is not a contradiction: as a constitutional actor, a supreme court can sometimes get government out of a hole, as the US Supreme Court did in Brown v. Board of Education in 1954, reversing its own previous decisions in defence of racial segregation and responding as government was failing to do to the potency of the civil rights movement; and it can also drop government in it, as the Canadian Supreme Court has repeatedly done by striking down laws on abortion, political asylum claims and the cross-examination of rape survivors and leaving the legislature to clean up the mess. The social and jurisprudential culture of lawyers is deeper than party, class, gender or race, and it will take more than a cleaned-up selection process to secure a reformed judiciary. The sensible course for rights advocates is to plan with what we have in terms of judges: if anything changes them, it will be a new rights culture which they cannot oppose, not one which they have initiated or led.
If therefore the courts are one of many locations in which politics are conducted, there is every reason to expect that a Bill of Rights will shift a further tranche of political power to the judiciary. Indeed, in the European Convention, the Canadian Charter of Rights and elsewhere, the criterion of what is ‘justifiable in a democratic society’ illogically transfers to an unelected judiciary the final say as to whether what an elected legislature has done is consistent with democracy: ‘illogically,’ not because parliaments don’t act undemocratically, but because judges have even less claim than parliaments to be arbiters of what democracy entails. The trouble is that, in Britain and other Western countries, it is political democracy itself which, by abdicating to cabinets, ministers, whips and mandarins, has forfeited any claim to be sensitive, honest or just and has led to a growing dependence on the courts to inject some basic standards of fairness and legality into executive and local government. The explosion of judicial review of government action in the UK has demonstrated an appetite for political intervention on the part of the judiciary which strongly suggests that our judges will welcome the chance of hands-on adjudication under a Bill of Rights, as they have done in Canada.
Adjudication can go more than one way, however. The lumpy record of Britain’s law lords in the forum of the Privy Council, the supreme constitutional court of a number of Commonwealth countries with Bills of Rights written in Whitehall, is not encouraging: for every human right they have vindicated, they have allowed two to be suffocated. Dworkin takes the view that this could hardly make things worse than they are at present. I would demur. Every time a court declines to interfere with an abuse of state power it legitimises that piece of oppression; and in a society as deferential as ours, legitimacy is rightly prized as the philosopher’s stone which transmutes power into authority.
Power is a greater determinant of rights than either law or justice. Any state can set out rows of shining rights, like medals on a leader’s chest. Stalin did it, and much good it did his millions of victims. West Germany, whose constitution incorporates the European Convention, has upheld the Berufsverbot which has legitimised a prolonged witch-hunt against Communists and radicals not only in government but in teaching and other public services. It is now conducting in the former GDR a purge comparable to anything that Honecker carried out in the name of state socialism. The US Bill of Rights, including its fifth amendment, saved few if any people from blacklisting and prison at the hands of the House Un-American Activities Committee. The Thatcher Government’s response to the Strasbourg ruling that telephone-tapping unregulated by law was a breach of human rights was to regulate it by a law which put it in the sole hands of the executive and beyond the reach of either citizens or judges. If this is the sort of legitimacy the European Convention confers, it does make things worse: the legal challenge which Joan Ruddock brought over the tapping of her telephone just before the law was changed is now no longer feasible.
This is not to say that written rights are useless. The American civil rights movement took off at the point where, instead of abandoning the Bill of Rights to white racists, it claimed legitimacy under the 14th amendment for racial equality. Nobody supposes 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 full century. Equally, without the constitutional peg on which to hang the claim, acknowledged legitimacy would have been near-impossible to secure. The point is that by themselves written rights deliver nothing, as the ANC, now drafting South Africa’s Bill of Rights, is having daily to remind itself. It is the power to make a reality of them which counts.
Power, however, comes to large numbers of disempowered people once in many generations. From year to year it resides in those hands in which the inequalities of an unequal society place it. The sharpest object-lesson in this home truth is being played out today in Canada. The 1982 Charter of Rights and Freedoms which Pierre Trudeau made his political legacy was widely expected to be as dead a letter as Canada’s earlier constitutional instruments. Instead the Supreme Court has welcomed the hundreds of litigants beating a constitutional path to its door and has established itself as the sovereign power in the land. But who is getting to the door, and who, once admitted, is getting a result? The Charter contains an equality clause intended to protect women and minorities and to ring-fence affirmative action programmes. Fewer than ten years after its enactment, we find that for every woman who brings a successful claim under the equality clause, ten claims by men are succeeding. A notorious recent case illustrates how and why. In it the Supreme Court has struck down the ‘rape-shield’ by which women were protected from cross-examination about their sexual past, in the interests not of sexual equality but of a fair trial. Fair to whom? one might ask. To the woman? To society? To the accused, is the court’s answer; and if it stood alone it would be unimpeachable. But in opting for it in preference to the others, the court has underwritten the very thing that both rape and cross-examination are about – the power of men to humiliate women – and at the culturally acceptable request of that powerful sector of society has enhanced its power to step on the rights of others.
Will the European Convention fare any better? Like the Canadian Charter, it contains a qualified guarantee of free speech. The European Community, like the Canadian Government, is trying to halt the advertising of cigarettes, which at present kill 300 people a day in Britain alone. The tobacco barons, who must advertise constantly to repopulate the market they are killing off, are placing full-page advertisements about their right to free speech, citing the recent decision of a Quebec court that similar restrictions in Canada are an unconstitutional fetter on that right. The Canadian decision is being appealed, and the battle is only starting in Europe (with our government siding with the tobacco industry). But the issue prompts two fundamental reflections. The first is that any Bill of Rights which even makes it possible for the judges to protect the right to promote disease and death is not worth having. In other words, arguments from consequences have a very real place in the debate, because the venality of much legal reasoning means that principle, when deployed by the powerful and unscrupulous before a sympathetic court, can be used to legitimise almost anything.
The second reflection is that the catalogue of rights in the European Convention is in any case incapable of dealing with the problems we now face. There is something oddly unhistorical and even reactionary in the unspoken notion that human rights are a fixed quantity. Well within living memory it was widely unacceptable to assert, what nobody now dares publicly to contest, that it is an inalienable human right not to be discriminated against on grounds of race or sex. Article 17 of the European Convention rightly forbids the use of any of the Convention rights to injure the enjoyment of such rights by others. But where in the Convention, or the Canadian Charter, or the US Bill of Rights, is the right to health, or to an unpolluted environment, or to freedom from inducements to sacrifice ourselves for someone’s profit?
The rights individuals need in the free-market societies of the 21st century will not be confined to those that seemed self-evident in the 18th and 19th. They will include environmental and social rights which have little meaning as a topic for one person’s litigation against the state, because they do not concern state interference with personal autonomy. That classic liberal paradigm is going to have to make room for an affirmative duty resting on the state itself to make a reality of a number of identified and entrenched social and environmental rights. Corporations, after all, exist purely by licence of the state. What individuals now desperately need is not only protection against invasion of personal liberties by the state but protection by the state from corporate invasions of the wider rights without which individual rights to life, liberty and the pursuit of happiness may mean little. A modern Bill of Rights has to give entrenched effect to the new as well as the old. It also has to deny corporate access to what are human rights.
The Hard Left is still wedged in a version of workerism which denies that there is a problem which the organised working class can’t solve for itself. It is assisted in this stance by the Labour leadership, whose reasons for opposing a Bill of Rights are unrespectable and probably reflect a desire to be as autocratic as their predecessors in office. The bizarre result has been that the IPPR, Labour’s think tank, has had to depend largely on former members and non-members of the Party for the formulation of its project, and it shows. Their commentary acknowledges that problems are becoming evident in Canada, but neither commentary nor text demonstrates an appreciation of the true nature of the problems. The project remains committed to the idea that in an unequal society equality before the law is all you need. The Labour Party needs to wake up to what Ewing and Gearty are saying in their Society of Labour Lawyers pamphlet: ‘A bill of rights is not there just to enable oppressed people to fight back against oppressive governments. It also equips the rich and powerful with another weapon with which to defend themselves. But unlike the disadvantaged and dispossessed they are likely to be able to use it more often.’
The Hard Right, by contrast, has perceived both that the carnage of the Thatcher years has given impetus to the movement for a Bill of Rights and that the programmatic field need not be left to the political centre. Frank Vibert’s essay in the IEA volume offers a very different reason from Charter 88’s or the IPPR’s or Liberty’s for enacting a Bill of Rights: that the US Supreme Court, despite its politicised system of appointment, is well respected and in turn generates respect for ‘the law’, meaning, I take it, its own decisions. Let others take note. It is for reasons of this kind that the Hard Right, behind the back of its own rigidly anti-rights leadership, has been steadily moving in for some years now with its own programme: the right to unlimited private property, to private education, to private medicine and so forth – the aim being to entrench the right to be unequal against the improbable event of a Labour government which wants to abolish it. In other words, there is already no accepted minimum programme, and the ground is being cut from under Charter 88’s feet.
The Right may be thin on the ground at the grand conventions, but they have much of Parliament and much of Whitehall by the ear. The content as well as the passage of a Bill of Rights is therefore up for grabs, and both Charter 88 and the IPPR (which has done no more than top up the European Convention from the International Covenant on Civil and Political Rights) must either repair the now manifest gaps in their project or face the deserved reproach that by going for half a loaf they are going to leave us with no bread at all.
Beyond the gaps which I have touched on lies an ideological chasm as deep as the contest over what sort of society we want. On the grand scale, this divide includes the question whether the right to be unequal is more important than the right to be equal, and indeed whether either of these is a right at all. This is not the old left-versus-right shin-kicking contest. Equality before the law means little in a society which has set out to distribute opportunity unevenly. Anatole France remarked on the majestic impartiality with which the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal bread. This is why, on the petty scale, a ‘green’ tax on petrol is a way of solving environmental problems at the expense of the poorer, to whom ten pence on a gallon may mean being unable to get to work, while the well-off can afford to go on polluting the air. Again, free speech for Rupert Murdoch means not being dictated to by the state about what he may print, whereas for people traduced by his publications free speech means an enforceable right of reply. The US Supreme Court has ruled that Murdoch’s is the true or dominant right. Again, a level playing-field in elections might be thought to mean a fixed limit on expenditure; but the US Supreme Court has held that this is an unconstitutional fetter on the right of money to buy power. If we disagree, as we should, with these outcomes, it is not because of a difference of legal reasoning but because of a difference of social and political goals. And it is our business to disagree: that is, to inspect outcomes and ask if they are what we want. Otherwise we fall into the trap Anatole France was pointing out: that the very neutrality with which laws are applied can be an instrument of oppression in a society governed by market principles. This is why those who are concerned about rights have an obligation to come out on issues such as substantive equality.
Liberty’s ambitious document (I must declare the peripheral interest of having commented on a draft) does something to understand and grapple with these problems. Where the other projects are deliberately restricted in their sources, Liberty’s is deliberately eclectic. Because the UK is plugged into the European Court of Human Rights, it starts with the European Convention but where weaknesses and gaps are perceived, supplements it from a range of UN, ILO, Council of Europe, Geneva, American and Canadian rights instruments, and beyond them from rights-based domestic legislation on criminal procedure, mental health and discrimination. It has explicitly shut out corporations as beneficiaries of human rights, and by a byzantine but probably unavoidable system of checks, balances and overrides more sophisticated than the IPPR’s override provision, has tried to unravel the paradox of judges deciding what is democratic. What is cheering about it is that its point of departure is not the now outdated commitment simply to getting the European Convention into UK law, which has ceased to be a sufficient or even a tenable agenda. The debate can move on from here and may eventually be rescued from the time-warp which is making the Charter 88 project, in its various forms, a danger.
Whether one regards an entrenched Bill of Rights as necessary or simply as something that will inevitably come before the end of the century, the need is to open up the debate in favour of a pro-human instrument, sensitive to the contemporary maldistribution of power, one which recognises that the state can and should be people’s ally as well as their enemy, that private abuse of power is as grave as state abuse, and that the delivery of real human rights means doing something to correct the law for disparities of personal power. If a tolerably fireproof instrument emerges, it may be worth having. If it doesn’t – if we stick on the European Convention – we will find ourselves, like others, pitting our hearts and lungs against the power of the machine as we run for ever up the law’s down escalator. Human rights are not a charter for free enterprise: they are a brave and fragile assertion that the weak have rights against the strong.
The following publications are discussed in this article:
A Bill of Rights for Britain by Ronald Dworkin (Chatto, 64 pp., £3.99, October 1990, 0 7011 3601 4).
A Bill of Rights for Britain? by Keith Ewing (Institute of Employment Rights, 26 pp., £2.50, August 1990, 1 873271 00).
A British Bill of Rights by Anthony Lester and others (Institute for Public Policy Research, Constitution Paper No 1, 28 pp., £10, December 1990, 1 872452 18 3).
Democracy or a Bill of Rights by K.D. Ewing and C.A. Gearty (Society of Labour Lawyers, 24 pp., 1991).
Britain’s Constitutional Future, edited by Frank Vibert (Institute of Economic Affairs, 147 pp., £9.95, November, 0 255 36301).
A People’s Charter: Liberty’s Bill of Rights (National Council for Civil Liberties, 118 pp., £7.99, 30 October, 0 964088 39X).