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.

It’s worth considering first what the relationship of rights to responsibilities ought to be. Every right logically carries an obligation resting on someone else to respect it. When, in his recent Mackenzie-Stewart Lecture in Cambridge, Jack Straw, the minister of justice, quoted Tom Paine’s stirring remark, in Rights of Man, that ‘A Declaration of Rights is, by reciprocity, a Declaration of Duties also. Whatever is my right as a man, is also the right of another, and it becomes my duty to guarantee as well as to possess,’ he may have overlooked the fact that Paine was making the point in order to demonstrate the shortsightedness of members of the French National Assembly who had demanded that the Declaration of the Rights of Man be accompanied by a declaration of duties. There was no need for the latter, Paine argued, because it was implicit in the former.

But so long as our model of rights remains the 19th-century liberal paradigm of rights protecting the individual against the state – and this is the essential shape of the ECHR – it is on the state that the corresponding responsibilities fall. It is only to the extent that the model envisages rights as inhering between individual and individual that responsibilities can begin to move in the same plane.

This is the process that was argued about at the act’s inception in terms of vertical and horizontal rights. One of the subtler but more profound shifts in the eight years of the HRA’s operation has been the progressive realignment of a number of human rights from restrictions on the power of the state to positive standards of human conduct: in other words, from the vertical to the horizontal. My own guess, hazarded ten years ago, that a kind of cascade effect of individual rights would develop has proved reasonably near the mark. In family law it has been impossible for the Article 8 right to respect for family life to remain a matter between the individual and the state. It affects practically every dispute between parents about custody and access. The same article’s guarantee of respect for private life affects the way the courts deal with the reasonableness of evicting private tenants for rent arrears or nuisance. And because the second part of Article 8 demands that any interference, as well as being permitted by law, must be no greater than is acceptable in a democratic society, the courts are having to understand and implement the European concept of proportionality (which originated in the courts of Bismarck’s Germany), giving structure and clarity to what used to be treated as an inscrutable exercise of judicial discretion. We have embarked on a rebalancing of our libel law by dovetailing the Article 8 privacy right more precisely than before with the Article 10 right of free expression, each of them involving respect for others in equal measure with personal liberty.

But there are two critical questions worth considering. First, is it useful to talk about responsibilities or duties when we talk about the reciprocity of rights? Second, to what further extent can and should the protection and enforcement of individual rights be made conditional on the fulfilment of responsibilities? I say ‘to what further extent’ because there is already a strong measure of reciprocity in the European Convention and the Human Rights Act: the bulk of individual rights are heavily qualified in the interests of the social whole. Your right to physical freedom is conditional on your not being jailed for a crime. Your right to free speech is conditional on your using it within proportionate legal constraints. The right of thousands of non-EU citizens to respect for their family life has to give way every year to immigration controls. Even the right to life is hedged around with qualifications. Human rights instruments have never been divorced from social responsibilities. Article 29 of the Universal Declaration of Human Rights asserts that ‘Everyone has duties to the community in which alone the free and full development of his personality is possible,’ and Article 17 of the European Convention forbids the use of convention rights to injure the rights of others.

How much further, then, can rights and obligations be made conditional on one another? Is the right to use the streets to be conditional on behaving acceptably? The voices in the media that chorus ‘Yes’ would be less enthusiastic if the right of free speech were, by parity of reasoning, to be made conditional on exercising it truthfully and responsibly. The fact is that many freedoms and rights mean that people have to put up with things they’d rather not put up with, starting with offensive, idiotic, malicious and even mendacious publications. That’s what free speech is. It has legal limits, but it carries no quid pro quo.

Justice Albie Sachs of the South African Constitutional Court not long ago gave a talk entitled: ‘Do wicked people have human rights?’ His answer was a qualified ‘Yes’; for you cannot in reality come to any other conclusion without sacrificing the entire concept of human rights. Any legal system can protect the law-abiding and reward the virtuous. What tests its integrity is whether it can accord due process to the vicious and the devious.

There is a pomposity about the words duty and responsibility, as well as an imprecision, which makes them a blunt and often ineffective tool. What seems more comprehensible to young people is the notion of respect. Some interesting work has been done on this in Hampshire schools. The county’s RRR project – rights, respect, responsibility – has produced not only some inspired responses from schoolchildren (‘The most important responsibility,’ one child wrote, ‘is to make sure everyone has their rights’) but has helped to bring about a measurable reduction in both playground bullying and teacher stress. Children are not being lectured or hectored about responsibilities. They are being invited to think about rights that other people have as well as themselves. Not long ago Ronald Dworkin concluded a public lecture by remarking that one human right nobody could contemplate taking away was the right to listen to music. The Hampshire project gets children to think about the question that sprang to my mind: does that include loud music?

The British Institute of Human Rights, which is building on this work in producing a national teaching resource pack, has also done pioneering work on an area of human rights that macho political arguments about individual responsibilities tend to bypass. This is the institutional treatment of the vulnerable: old people, ill people, mentally and physically disabled people. The Human Rights Act places responsibilities on public authorities, leaving it to the courts to enforce them; but some restrictive decisions of the House of Lords, culminating recently in their split decision that the private care homes in which local authorities place elderly people are not fulfilling public functions and thus have no obligation to respect their patients’ human rights, have cut back the protection afforded by law to vulnerable people. It is possible that this will become the first judicial decision under the Human Rights Act to be reversed by legislation. If so, it will be a great pity, for one of the great achievements of the act was its avoidance of a massive list of public authorities in favour of what seemed a purposive and workable function-based formula. It is the tabulated right to respect for private life which has made it possible for the British Institute of Human Rights to work with care providers on standards that recognise as elementary human rights things like being able to use the toilet out of public view. A charter of responsibilities might in fact resolve this kind of problem by making it the duty of private as well as public care providers to respect these elementary rights.

The concept of proportionality of state action to individual interests has been one of the invisible but real benefits of the Human Rights Act. Another, to the surprise of those who thought it was window-dressing, has been the effect of Section 19 of the act. This authorises ministers to certify on bills they are promoting that their contents will not deny rights guaranteed by the convention. To avoid the criticism that the absence of a Section 19 certificate will attract, provisions have been included in bills specifically to make them comply with the convention. One instance was the inclusion in Section 55 of the Nationality, Immigration and Asylum Act 2002, which denied all assistance and benefits to asylum seekers who did not claim asylum promptly on arrival, of a proviso that this was not to result in a breach of asylum seekers’ human rights. The courts, faced with destitute asylum seekers who were going hungry and becoming ill while waiting for their claims to be processed, held – as they would not otherwise have been able to do – that the prohibition of inhuman and degrading treatment in Article 3 of the convention prevented the government from treating people like this and required it, albeit only in cases of severe hardship, to give them some help.

The convention itself has played a central role in the development of a law of privacy. Article 8, a provision which, when it was adopted in 1950, was principally concerned with the jackboot in the door and the informer in the apartment block, is evolving into a shield against invasions of privacy from a quarter not contemplated by the framers of the convention but now more invasive than the apparatus of most states: the media. Our courts have set their face against any interpretation of the convention that carries individual rights further than Strasbourg has carried them. The logic of this is intelligible: it avoids judicial legislation and prevents member states from getting out of step with one another. But it carries a risk that, in trying to stay level, we shall fall behind. One result has been that the reluctance of the UK’s highest court to develop the judge-made law of confidence so as to protect individual privacy has earned us a ruling in Strasbourg that the UK has been giving short measure under the convention, and we are now having to run to catch up.

All of this makes it a pity that, instead of setting out in a reasonably sanguine and collaborative mood to see how the Human Rights Act can be built on, argument is starting from a low and defensive base. There is, even so, a wealth of discussion to be had about what might be added to the rights we are already signed up to. If the European Convention were being written today, a number of additional rights would almost certainly find their way into it: Roosevelt’s right to live free from fear; a bar on capital punishment within the right to life; some specificity about what amounts to torture, since there appear to be people in the world who do not know what torture is; a right to honest and open government; a right to basic food and shelter; a right of access to healthcare; a right to a wholesome environment; and other social and economic rights – the right to education is already there – which the Constitutional Court of South Africa has shown can be made justiciable without usurping the role of government.

Perhaps the biggest single concern is how any such change is going to be engineered, because the mode of reform is going to have a radical influence on its effect. I am not so concerned with entrenchment, although any process by which a parliament proposes to bind its successors will require the introduction and recognition of a new type of fundamental law, with major implications for parliamentary sovereignty. But any project which aims to enshrine our human rights in or alongside a larger constitutional instrument, entrenched or not, is going to throw up questions about the content of that instrument.

Constitutions are not like ordinary laws. Adopting a constitution by a bare political majority, binding possibly large minorities for the foreseeable future to ground rules to which they have not assented, is not a good idea. The main parties, all of which speak of the need to achieve a wide consensus, recognise this. None of the great constitutions has come about through a simple decision of the political class to write one or through a straight majority vote in favour of one. They have been brought into being to describe and give legitimacy to a new beginning in which effectively an entire nation is participating. This has been the genesis of history’s great constitutions: France’s and America’s in the 18th century, South Africa’s in the 20th. Good constitutions, paradoxically, do not produce change; they are themselves the products of change. History is littered with lesser constitutions written to create the illusion of change and long since forgotten.

That is my first caveat. My second is that, as Mr Podsnap appreciated, we already have a powerful and comprehensive constitution, although Mr Podsnap was probably thinking more about what Walter Bagehot called its dignified parts (the parts which ‘excite and preserve the reverence of the population’) rather than its ‘working parts’. But the idea that putting it in writing will somehow elevate its status and enshrine its contents is a mare’s nest. Nobody who knows anything about the constitution of the United States thinks that it is located in a document adopted in 1787 and occasionally amended since then. Most of it is to be found in a mass of case law and custom. Out of these, moreover, have come some interestingly monarchical practices, sanctioned or acquiesced in by the Supreme Court: the power of the president, for example, to pardon political associates who have had the bad luck to land up in jail, a breach, by our standards, in the separation of powers and something of an affront to the independence of the judiciary; or the presidential power to impound congressional legislation, a power we took away in 1689 from a monarchy that the American colonies went to some trouble to overthrow.

Legislators nevertheless seem reluctant to give up the delusion that – this time – they can anticipate all eventualities. Many of the changes outlined in the government’s green paper would not in fact require legislation. Its proposed overhaul of the attorney general’s function (at last recognising, perhaps, that it is not one job with two roles but two jobs that cannot always be done by the same person); the transfer to Parliament of the prerogative powers to make war and ratify treaties; the withdrawal of the government’s hand from ecclesiastical and judicial appointments and from the granting of honours: all these can probably be accomplished within an organic constitution like ours by a change of practice. The case for putting it in writing is the case for a written constitution.

Attractive as that case is, it carries a risk that what gets poured into the empty vessel will be a function less of social consensus or of a radical shift in the polity than of wrangling, horse-trading, last minute worries and possibly a whipped legislative majority. We saw in the passage of the Human Rights Act two examples of how interest groups can lobby to secure special protections or exemptions from principles that apply to everyone else. The press secured a provision seeking to get the Article 10 guarantee of free expression out in front of other rights. The churches were able to secure a provision seeking to prioritise the Article 9 guarantee of freedom of thought, conscience and religion. (I say ‘seeking’ because it is possible that to accord a presumptive priority to any one right would itself be contrary to the act and the convention. There has as yet been no decision as to whether the act itself requires these particular provisions to be read down.) Is there any reason to think that the process of constitution-making will be very different?

Written constitutions also have an unexpected tendency to be less authoritative than ordinary statutes. French parliaments for years went on accepting proxy votes although they were expressly forbidden by De Gaulle’s constitution. Our own Parliament may have thought that its historic Bill of Rights had decisively taken away the dispensing power of the Crown, but Her Majesty’s Customs and Revenue to this day publish an annual volume boldly entitled ‘Extra-Statutory Concessions’.

The big constitutional issues nobody seems keen to address are those that have to do with the separation of powers. Not the three powers – legislature, judiciary and executive – that all law and politics students learn by rote in their first year: in relation to them the historic settlement reached in the course of the 17th century has held up remarkably well, maturing into a modern constitutional arrangement held in place, as good engineering should be, by its own tensions. But there are more powers in the state than these three, and the failure of politics, though not of political science, to recognise them may have implications for our democracy.

First, it may be thought, there is a need for a formal separation of party and state. The drift of recent decades in the opposite direction is capable of bending both legislative and executive action to a will that stands outside the democratic process. Second, it may be thought that we ought to follow the United States and France in enacting a clear separation of religion and state. Many people in Europe and the Commonwealth who admire this country’s constitution find it remarkable that, in addition to 92 peers who still sit there by hereditary right, 26 bishops of the Church of England continue to sit by something akin to divine right in the upper chamber of a secular legislature. Whether the state should have its own church is one question, but whether that church should have a hand in the governance of the state is another.

The problematic relationship of state and religion does not end here. There is an argument, which deserves attention, that the state, by undertaking through the education acts to fund faith schools (not solely those of the Church of England), has found itself sponsoring discrimination on religious grounds against children whose families do not subscribe to a particular faith. The fact that it is only those faith schools that control their own admissions and are fully subscribed that are in a position to reject otherwise eligible pupils may limit but does not answer the problem. A constitution or bill of rights that enshrines, as one would expect it to, the guarantee in Article 9 of the ECHR of freedom of religious observance would certainly allow parents to provide from their own or from other resources for their children to have a religious upbringing; but could it allow public funds to be used to pay for it?

There are other, albeit lesser concerns about the writing of a new constitution for the United Kingdom – even if one leaves out of account the daunting complexities of doing this for a state which, with devolution, has become a de facto federal state by a kind of centrifugal process, throwing off members where states ordinarily federate by a centripetal process. One concern is that one of the limbs of the state, the executive, will have a prime responsibility for composing the new arrangements for running the state, and that another, the legislature, will have responsibility for vetting and enacting it. Each will inevitably have its own agenda.

We have seen over the years occasional indications of what this can entail. The Asylum and Immigration (Treatment of Claimants) Bill 2004 contained a clause that was going to remove all appeal and judicial review from the asylum and immigration system. This privative clause created a storm of constitutional objection and was finally dropped. But it had acted as a very efficient lightning conductor, so that a section with comparably serious constitutional implications became law almost unnoticed. It provides that, in determining whether to believe a statement made by an asylum seeker, an immigration officer, and in turn an immigration judge, has to take into account a number of things, one of which is the use of a false passport, ‘as damaging the claimant’s credibility’. As is obvious, many people fleeing persecution have no option but to travel on false papers. An enactment which may have the effect of prescriptively requiring a judge to disbelieve an individual’s otherwise credible story, and so possibly send them back to torture or death, is a serious invasion of judicial independence. Immigration judges for the most part manage to minimise its effect, but it is not the proudest moment for humanitarian protection or for judicial independence in the UK.

There is therefore a certain amount to be wary about in a process of constitution-making that is not a response to great changes but a reorganisation of the arrangements for running the state. If it includes or accompanies a bill of rights and responsibilities, there is even more reason to be cautious. The principal political parties recognise this: they are looking for a consensus, not merely a majority, in favour of whatever changes are finally placed on the table. But a consequence of a search for consensus in what is not a constitutional moment may be that it is the lowest common denominator, not the highest common factor, on which the process has to settle. Who, the demagogue asks, will not raise their hand in support of a solemn statement that British values include tolerance and broadmindedness? And who, the cynic asks, will it make a whit more tolerant or broadminded?

It may be that the answer is neither an entrenched law of rights and responsibilities nor a grand constitutional measure, but some principled alterations in constitutional practice, a thought-out enlargement of the socially calibrated rights vouchsafed by the European Convention, and a not too ambitious statement of responsibilities, duties and values. Whether or not this is what we are looking for, when the tumult and the shouting have died down and the captains and kings have departed, it is probably what we shall get.