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Here come the judgesConor Gearty
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Vol. 20 No. 11 · 4 June 1998

Here come the judges

Conor Gearty

4154 words
This Time: Our Constitutional Revolution 
by Anthony Barnett.
Vintage, 371 pp., £6.99, December 1997, 0 09 926858 2
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The Voice of the People: A Constitution for Tomorrow 
by Robert Alexander.
Weidenfeld, 214 pp., £17.99, September 1997, 0 297 84109 2
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The Making and Remaking of the British Constitution 
by Lord Nolan and Stephen Sedley.
Blackstone, 142 pp., £19.95, November 1997, 1 85431 704 0
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At Sunday mass in my North London parish there was recently imposed a ‘New People’s Mass’. It came suddenly and without warning. One week, we were all enjoying versions of the Sanctus and the Kyrie delivered from the organ loft by a group of locals, musical and devout. The next, song sheets were handed out, with music few could read, and we were expected to sing along. The New People’s Mass has ever since been rather a grim affair – a dreadful noise in the pits while the faithful work out where quavers go and what crotchets sound like. The change had been made in the name of the People by anonymous tribunes so certain of their rectitude that to consult the congregation, much less let it decide, would have been tautological.

After a few years of disgrace following the collapse of various ‘People’s Republics’, the ‘People’ are back with a vengeance – currently as a fashion accessory for the believing democrat. In the early Nineties, it was chic to have a baby in one hand and a cappuccino in the other. Now the trendier of our politicians and intellectuals carry the People in their rucksacks. Primus inter people is the founding director of Charter 88, Anthony Barnett, whose book attempts to recapture for his constitutionalist tendency the drama of ‘our constitutional revolution’: ‘“we the people” – to use a long-coined phrase that may finally become currency in Britain – have changed, especially in our relationship to authority.’ The idea of the book is unobjectionable: it asks what last May’s General Election ‘really tells us; explores the significance of the response to Diana’s death; shows that the old British system is broken; explains what a constitution is; advocates a written constitution; suggests a strategy for change; probes the meaning of English and British identity; and looks at the choices facing Tony Blair’. But it’s unreadable and hasty, ‘drafted between May and August 1997 and finalised after the events of September’. Barnett is himself ‘acutely aware of the missing references, the partial arguments and contributions unheeded’, but excuses it all by declaring his aim to have been ‘to show how the principles of reform, linked and complex though they are, can be debated in an open fashion’. But this aim is undermined by serious errors of judgment.

The book is in two parts. Five chapters appear under the general rubric ‘The Meaning of 1997’. Barnett says he has ‘sought to recapture the moment of 1 May’ when, in his view, the people ‘upended the axioms, the premise, the foundation on which English constitutional debate has rested’. This involves a sampling at ‘some length’ of the press coverage prior to the election and a description in ‘some detail’ of ‘the corruption and sleaze voters consciously rejected’. A third chapter provides an account of selected historical events across the world and an opinion on the conduct of Labour in its first weeks in office; a fourth tells us about the election campaign and the relevance (or irrelevance) of constitutional reform as an issue during it. This part of the book is like reading a bunch of Sunday newspaper articles – which would not matter too much if there were some deeper structure, but there is little or nothing in an analytical vein. Barnett takes us back to the recent past, not to explain it but rather to relive and (he hopes) savour it. It is this addiction to the moment that is responsible for the extraordinary Chapter Five with which the first part of the book draws to a close. Its title is accurate as to its content and style: ‘Diana. “You was a Rose in a Garden of Weeds.” ’

The impetuosity which explains the existence of the first part of the book damages the second, which is called ‘Voicing the Constitution’. Here Barnett sets out to ‘outline a case for reform’, opening with ‘a lengthy chapter which argues ... that Britain’s present constitution is broken’ and that now is the time when ‘the process of writing down the constitution can be embarked upon’, a process ‘that needs inventive public participation’. But with no narrative framework to prop it up, the rhetoric that was already tiresome in the previous section of the book now becomes exasperating. Defenders of the status quo ‘only just manage to wheeze clichés about wonderful chaps, Parliamentary sovereignty and the best system of government in the world.’ ‘If it is so good, why not write it down?’ he asks. The ‘lived tradition that once ensured a restraint upon the abuse of power has withered. Its lungs no longer speak out against impropriety.’

The temptation to intervene becomes impossible to resist. Consider this statement: the ‘classic division of State authority into three branches – legislative, Executive and judicial power – is inadequate. Another branch of the State is now growing, namely, accountability.’ Provocative, perhaps, but what does it mean? The legislative branch enacts the laws, the executive executes them and the judiciary adjudicates upon their legality, so what does this fourth branch do? How do you account for things without having any power to exercise? Who are these constitutional accountants? Apparently they do ‘exercise an official power’. The executive in another guise, then? No, not quite: ‘The more that official authority is decentralised and shared, the more clearly accountability becomes essential to legitimate rule.’ So is it a principle to which all three branches are subject rather than a branch in itself? We never find out. The discussion is summarily wrenched from matters constitutional and becomes the grandest of historical inquiries into the growth of nationalism, democracy, empire. These few paragraphs of historiography are then abruptly terminated:

In other words, what a constitution ‘is’ has changed successively, since the first secular definitions of national sovereignty began in the 17th century. Redefining Britain’s constitution can mean reconnecting with that intense, pioneering English debate that, as I noted in the Introduction, has been pressed into silence. But it does not mean returning to that time ... and its presumptions. I will therefore look at a crucial reform that shows the way in which constitutional reform is itself a moving target.

And with that we’re off again. This time into freedom of information, open government and the late Lord Franks (‘the representative of the British political-administrative élite’).

In the same year that Barnett was kicking Charter 88 into life in various basement flats and leftist magazine offices, Robert Alexander accepted ennoblement as a Tory peer in the House of Lords, though his elevation is not mentioned on the cover of The Voice of the People. He is a former leading QC; former chairman of the Bar; former chairman of the City Panel on Takeovers and Mergers; and current chairman of Justice and of the NatWest Group. He has now turned his mind to constitutional reform.

‘In spite of the economic achievements during its long spell in government,’ Alexander writes, the Conservative Party ‘increasingly disappointed many of its supporters’; in ‘the last few years of government, the Party forsook its traditional commitments to civil liberties and introduced a raft of laws infringing what had previously been long-standing freedoms.’ Alexander doesn’t seem to be referring to the Prevention of Terrorism Act 1984, the Interception of Communications Act 1985, the Public Order Act 1986, the Government’s civil war against the miners and CND during the mid-Eighties, the banning of trade unions at GCHQ, or the Spycatcher litigation – all these occurred before ‘the last few years’ (and before he accepted elevation to the Upper House). His first speech in the Lords, six weeks after the Government had imposed its media ban on Sinn Fein, was on city takeovers. During the course of the next year, he supported die Government’s Official Secrets and Security Services legislation, and opposed liberalising amendments to both Bills. At the height of the Late Thatcherite authoritarianism, he declared in a debate in the Lords that he did ‘not believe that, overall, this country has at the present time a bad record in terms of human rights and civil liberties’. The ‘raft of laws’ of which he now disapproves seems to have emanated exclusively from Michael Howard, when the Government was already on its last legs.

Alexander’s book is a compelling account of what the powerful in our society now mean by democracy; his is the authentic voice of post-democratic liberalism and his version of democracy both mirrors and explains much of the Labour Party’s constitutional agenda, reconciling aspects of its behaviour that might otherwise seem contradictory. (He does not intend this: the book was largely written before the change of government.) In his opinion, ‘there must be two rocks on which a healthy democracy is built.’ The first ‘is a consciousness mat the role of any state should be limited. The function of central government should be, and should only be, to create a healthy framework for economic and social activity.’ This is not an argued proposition; it is the assumption from which all else flows. The second ‘rock’ is ‘the involvement of ... individuals as much as possible in their own affairs and in the taking of decisions which affect them.’ This opportunity for participation ‘must be real’:

People often feel helpless to influence the remote power operating from Westminster. Helplessness breeds alienation and impotence, and both breed indifference to the political process and irresponsibility on the part of the individual citizen. The power to take part in major decisions which affect us is a basic freedom.

This ‘basic freedom’ is not all that its formulation would suggest, however. The effect of Alexander’s first ‘rock’ is to reduce the second to a pebble, unlikely to cause other than the occasional ripple in the tranquil civic pond. There is ‘now a broadly prevailing orthodoxy as to macroeconomic policy’ and an ‘underlying commitment to low inflation’, the likely benefits of which have been ‘greatly reinforced by the new Government’s grant to the Bank of England of operational independence in the task of setting interest rates’. This ‘gives individuals and businesses the priceless opportunity to plan for their futures and to flourish’ – not that an independent Bank of England can be said to have anything to do with popular participation in politics.

Nor is there a place in Alexander’s model democracy for any serious attack on inequality, since it raises property ownership to the level of a human right. One of die few criticisms that Alexander makes of the Labour regime is in respect of its failure in the current Human Rights Bill to allow the courts to strike down Acts of Parliament where the judges find them to be inconsistent with the European Convention on Human Rights. Many New Labour acolytes seem to view the respect for Parliamentary sovereignty which led the Government to curtail the power of judges and deny them the ability to strike down Acts as an anachronism of Old Labour.

It is precisely because the power of democratic representatives has dwindled that Alexander and others like him can afford to be such enthusiastic democrats. His model democracy is one in which the social playing field is predetermined and the important rules established, so that the voters are left merely to choose the teams’ colours. This is why he writes so enthusiastically about the need to revive local government and why he is mistrustful of devolution and keen on referenda only if a constitutional commission (‘consisting of senior members of both Houses of Parliament and possibly judges and influential people drawn from across the spectrum of society’) gets to make sure ‘the issue is put in the right way’. He is able to say that it ‘is surely time that we trusted our people more’ and allowed them ‘greater participation in the greater and lesser decisions of our times’ only because he has in mind a range of extra-democratic mechanisms to control the people: ‘Promises of bread and circuses can sometimes have a sweeping popularity.’

There is so little democracy in the European Union that even Alexander is anxious to ‘involve the people’, something which is ‘no more than obvious common sense’ and without which European institutions ‘will wither and perish’. Yet Europe’s capacity to construct a body politic which excludes the people from the key macroeconomic decisions is to this extent at least a model of the kind of ‘democracy’ for which he argues in the rest of the book and which he would happily impose on Britain. An opinion poll conducted across the European Union last year revealed that while support for the idea of democracy remains extremely strong – 82 per cent said it was the best political system – no fewer than 80 per cent agreed that, despite living in democracies, they had ‘little control over what [was] happening in the world around’ them. Nearly nine out of ten respondents agreed that the rich were getting richer and the poor poorer, and 80 per cent agreed that corruption among politicians was on the increase.

The organisation of the EU and Alexander’s analysis of Britain reflect a modern redefinition of democracy, the effect of which is to put as far as possible beyond the reach of popular decision-making any radical options on the nature and organisation of our society. This is the context in which to view the current interest of Western governments in ‘human rights’. Not that the Labour agenda is entirely Alexandrian. Devolution to Scotland and Wales and a London mayor at least have the potential to create a new breed of quasi-official radicalism, but this is bound to be sharply limited by the reinvigoration of the judicial branch of government. The courts, which Labour will rely on to police the boundaries between central, devolved and local government, are likely to be the ideological battleground in the years ahead, and it will be the judges who have effective custody over our ‘human rights’. After enactment of the Human Rights Bill, the courts will not be able to strike down Acts of the Westminster Parliament, but they will be able to distort its language whenever possible to protect the ‘human rights’ set out in the Bill; they will also be empowered to overrule the new assemblies planned for Cardiff, Edinburgh and Belfast.

In the 1997 poll, 92 per cent of Europeans asked agreed that the right to education and training ‘should be respected under all circumstances’; 85 per cent expressed the same view of the right to housing. Had they been asked the question, no doubt the British participants would also have singled out the right to health. The four ‘most worrying political and social issues of our time’ were found to be the state of the environment, unemployment, poverty and crime, and no doubt, had they been asked, a huge majority of Europeans would have seen the right to food, work and a good environment as being among their fundamental freedoms.

None of these ‘human rights’ have very much to do with a society addicted to stable markets. Nor do they appear in the Human Rights Bill. In our political culture, the idea of human rights has been largely restricted to certain civil and political rights and to the right to property. The significance of this Bill lies in the fact that the UK is finally falling into line behind the massive judicialisation of Western democracy which has come in three large waves since the end of World War Two, and which has been one of the main ways in which the will of the people in capitalist democracies has been disconnected from effective participatory democracy. Only the residual respect for Parliamentary sovereignty retained in the Government’s Bill, and excoriated by Alexander, reminds us of a better time.

This trend towards judicialisation began with the constitutional reconstruction of Europe immediately after 1945, when Germany, Italy and France were redefined as democracies in which the ultimate power to protect the constitution rested not with elected representatives but with the courts: the Bundesverfassunggericht in Germany, for example, and similar tribunals in France and Italy. Part of the same drive led to the writing of the European Convention on Human Rights. The drafters of these various constitutions were concerned about the threat of a reintroduction of Fascism or Communism, but it is hard to see how a genuine movement of either sort could have been hindered for long by judicial defiance. On the other hand, it is very easy to see how the property rights protected by all these constitutions could be deployed in defiance of democratic socialist attempts to reduce inequality.

The second, more recent, wave of judicialisation involved changes in the Commonwealth. Most Commonwealth countries inherited a democratic legislature, although one still (at least notionally) subservient to Westminster. All this has changed over the past twenty years. Canada has embraced an American-style Charter of Rights, which has transformed its political system and brought as much havoc to many areas of public policy as it has political power and financial remuneration to many lawyers. Not to be outdone, Australian judges have begun to impose their version of basic rights on legislation so as to be able to trump democratic decisions taken at a national level. This has already had catastrophic consequences in the area of campaign funding, where the High Court has followed American authority in striking down parts of a law that attempted to control the amount of money that could be spent on election campaigns. Even New Zealand, which tried to have it both ways, by enacting a Bill of Rights which doesn’t apply to statutes, has found that the courts are construing this instrument in a way that has had unexpected and highly controversial results. So entrenched has this notion of judicial supremacism become that in South Africa it is taken for granted that the new Constitutional Court should have powers of judicial review of legislation far wider than the peculiar circumstances of the country might have demanded.

It is extraordinary how recently the courts began to have this final say in Western democracies. To an extent, informed opinion has been blinded by the US example, where judicial power – nowhere in the Constitution – was seized by means of a lawyers’ coup as early as 1803. Despite the overwhelming support it receives in liberal circles, the impact of the judiciary on US society has been predominantly negative (the only possible exception is the Warren era in the Fifties and Sixties). Yet confidence in it lies behind the third wave of the judicialisation of democracy: the export to the new democracies of Central and Eastern Europe of many of the assumptions about separation of powers and judicial oversight that are commonplace in the US. The European Convention on Human Rights has been equally important. Its reach has not only been eastwards, with Russia a recent signatory, but also northwards, with the Scandinavian countries – which have long prided themselves on the purity of their democracy – falling like ninepins. Now the United Kingdom stands alone, as one of the last places where a Parliament of elected representatives can speak conclusively for the people; but after the new Bill becomes law that voice will have to be unequivocal and determined if it is to be heard.

If the judges are to join Alexander’s élite as the protectors of democracy from majoritarian or populist ‘excess’, then we should naturally be interested in who they are. Lord Nolan and Sir Stephen Sedley, joint authors of The Making and Remaking of the British Constitution, are two of the many recent appointments to the Bench which have excited hopes that the courts are about to deploy their well-established legal powers to protect from state interference not just property interests but also such civil and political rights as those to freedom of thought, expression, assembly and association. Certainly there is scope for such judicial engagement under the Human Rights Bill, and the rhetoric of some judges suggests a new engagement with civil liberties. If the courts do embrace this opportunity to protect individual liberties, and interpret the Bill so as to permit political radicalism to take on state power without being destroyed by the police and the security services, they will be breaking with the habits of an institutional lifetime.

Throughout this century, the courts have been the most reactionary and illiberal branch of the democratic state. This has been true whether or not the citizens of the state concerned have been the possessors (proud or otherwise) of ‘human rights’. Not even the US First Amendment could prevent Eugene Debs from being jailed for ten years in 1919 for obstructing recruitment of men to fight in the First World War, when he declared an abhorrence of war and asserted that the courts, the press and the entire political system were controlled by the rich. Nor did the US Supreme Court protect Americans from the McCarthyite witchhunt. Neither the European Convention on Human Rights nor Europe’s other Bills of Rights has been able to protect radical opinion where the system of government itself has been perceived by the judges to be at stake. The record of the judges in Britain this century has been as bad in respect of civil and political liberty as it has been robust in the defence of property. Indeed, so awful is the case-law, and so embarrassing are the current claims of judges to be the custodians of liberty and freedom, that some have given into the temptation of revisionism. Here is Lord Nolan on the miners’ strike:

The miners’ strike of 1984-85 gave rise to a Gallup poll in February 1985 ... which showed that, since June 1969, the number of persons who thought the judges were influenced by the government in power had risen from 19 per cent to 43 per cent. But that strike, and the earlier history of the Industrial Relations Court, had placed the judges, through no fault of their own, in the unenviable position of enforcing deeply unpopular laws upon a number of trade unions and their members. The judges were thus portrayed, unfairly, as allies of the Conservative Government.

It was not statute but judge-made law which allowed the police to roadblock the motorways to prevent striking miners from exercising their freedom to picket. Nor was it any statute which required the then Lord Chief Justice, Lord Lane, to uphold the automatic imposition of draconian bail conditions on striking miners. Even the now saintly Richard Scott, scourge of late Toryism, was unable to resist the invention of a new common law tort so as to be able to attack the members of a union intent only on exercising what they believed were their civil liberties. It was not statute which compelled the courts to assist the Tory Government’s suppression of Peter Wright’s allegations in Spycatcher, or to uphold the media ban against Sinn Fein and others holding Republican views. Similar cases can be produced to show an equally creative, and entirely common-law-based, judicial antagonism to the rights of Communists, anti-nuclear protesters and anti-apartheid activists.

Like Lord Alexander, the judges can now be liberal because liberalism is in the air. It was easier for the Supreme Court in Washington to assert free speech when it came to opposing an unpopular war in Vietnam, or when it involved support for the struggle for racial equality in the despised South, than when the cause was that of Eugene Debs or the isolated opponents of McCarthy. Would the British judges be more careful now than they were with the Irish miscarriage of justice cases in the Seventies, if such decisions were again required to be taken against a backdrop of the level of violence that was then being generated by IRA separatism?

The mere adherence of the courts and the executive to the idea of human rights is bound at least partly to expose them to pressure on civil and political freedoms. One could be more optimistic about this if there were more Stephen Sedleys on the Bench. The future test of judicial commitment to civil liberties may well be set by the environmental, animal rights and New Age activists who have gathered support on the fringes of our society throughout the Nineties, and whose conduct and lifestyle have provoked a repressive reaction on the part of the state. In a recent case, a group of people were convicted under the Criminal Justice and Public Order Act 1994 for standing on a grass verge on a roadside within four miles of Stonehenge, contrary to police orders. They had a few banners and were playing some music, but causing no obstruction and committing no nuisance or act of violence. The Queen’s Bench judges upheld the convictions, with one of their number stating that the ruling complied with the right to peaceful assembly in the European Convention since the ‘reality is that peaceful and non-obstructive assemblies on the highway are normally permitted.’ Is this the real face of our new constitutional masters?

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Letters

Vol. 20 No. 13 · 2 July 1998

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

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