Free speech for Rupert Murdoch

Stephen Sedley writes about the limitations of a Bill of Rights

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.

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