Rights For The Right

01.03.97 Publication:

Parliamentary sovereignty is not the solution to Britain´s European impasse. Bill Emmott, editor of The Economist, and David Manasian, argue that Thatcherites and Hayekians should embrace constitutional reform and a bill of rights as a permanent restraint on the power of the state

Constitutional debate is not something to which Britons are accustomed. People do not march down London streets to campaign for proportional representation. No one chains themselves to the railings of the House of Lords to appeal for its abolition. The newspapers are not full of columns arguing the case for or against a bill of rights. Even when in October 1994 The Economist used its cover to declare itself in favour of the abolition of the monarchy it caused barely a flutter; a few hundred letters were received, some of them passionate, several vitriolic, but the moment passed quickly.

The reason for this lack of interest, it might plausibly be argued, is that the British are passably satisfied with their political freedoms. They may be contemptuous of politicians, but they are truly afraid that constitutional change might threaten the stability of their daily lives. Only in places where people feel systematically repressed do constitutions and political frameworks become important, which is why Northern Ireland is the only real venue for constitutional dispute within the British Isles. Even in Scotland, where the desire for some sort of devolved power does exist, it is not a passion-raiser.

So perhaps the traditional Tory assumption is true: wait patiently, let the British instincts for compromise emerge, and all will in the end be well. That is an attractive view, until you notice what Tories themselves, traditional or otherwise, have been arguing about in recent years. One issue, and one alone, has made a constitutional question a source of sustained political division and popular passion: Europe. For two decades, but especially in the past five years, Britain´s relationship with the EU has divided the Conservative party; less noticeably, it has also divided popular opinion. Although a clear majority of those asked by opinion polls express support for British membership of the EU, large scores are also achieved by those decrying European intrusion and the transfer of powers to EU institutions.

There are, however, three important oddities about this. The first is that as a part of this argument a barrow-load of grievances about red tape and intrusion have been assembled and blamed, often wrongly, on Brussels. But these grievances actually have very little to do with the EU per se. They are grievances about the citizen´s lack of redress against over-mighty government, not merely of a general despotic sort but also of a petty bureaucratic variety. They are, in other words, evidence in favour of the introduction of a bill of rights.

That is an abstract idea, however, which is thus hard to grab hold of. Hostility to foreigners, to Europe, is far easier to grasp. That is why the second oddity is that most people who bemoan the influence of Brussels do not really think they are entering a constitutional debate. To them, it is an issue of sovereignty, a preference for being governed by us rather than by them. This would be a banal observation, a recognition simply that Britons have no habit of constitutional debate and therefore do not recognise one when they have it, if it were not for the third oddity.

This is that, among the elite opinion which has campaigned against the loss of power to Brussels-the Eurosceptic Tory MPs, the columnists on the Daily Telegraph, The Times and the Daily Mail-the constitutional principle on which their argument has been based has been exactly the wrong one. Their sacred principle is parliamentary sovereignty. They see the EU as a violation of that principle. They do so in part for a good reason: the feeling that actions taken at the European level lack democratic support in many countries across the Union, but certainly in Britain.

But that point appears to blind them to a further, constitutionally more important one. This is that powers have not been stolen from parliament by a voracious, ambitious set of European institutions. Far from it, they have been given away by Britain´s sovereign parliament. And the moments when those powers were given away did not entail lengthy constitutional debate, or complex procedures designed to restrain hasty constitutional change such as referendums or 75 per cent votes of the Houses of Parliament. The accession to the European Community in 1972, the Single European Act in 1986, the Maastrict treaty in 1993: all were passed by simple majorities of the House of Commons.

The creation of what Europhobes see as a European superstate has been made possible by the brutal exercise of parliamentary sovereignty. Even if a Eurosceptic Tory party were to repatriate powers from the EU, the very next parliament could transfer them back again, on a simple vote of the House of Commons. In terms of the only constitutional issue that has exercised the British public and media in recent years, parliamentary sovereignty is certainly not the solution to it. It is the problem.

in the past, parliament was seen as the heart of Britain´s constitutional solution: the concentration of power in the House of Commons, the epitome of Edmund Burke´s view of representative government, gave Britain an ideal combination. On the one hand, the Commons was accountable to the people, in regular elections. On the other hand, the Commons had no need to worry about written constitutional principles, checks, or balances imposed by other institutions. Popular support for the system was cultivated by the monarchy, which lent politics its glamour and sense of tradition. The Commons was therefore efficient; the government formed out of its majority had the great merit of strength.

Many parliamentarians still believe in this. They adore the idea that their institution is the crucible of democracy; that no idea has been properly tested until it has been debated on the floor of the House of Commons. This view, however, comes up against an awkward truth. This is that the House of Commons itself is more or less moribund.

The days have gone when debates in the Commons were moments of great theatre, or even of great oratory. Most take place with few MPs in attendance. Hansard is barely consulted, let alone read. The Commons select committees, are, at best, of marginal importance. And as for the House of Lords; worthy though much of its activity is in scrutinising legislation, if it were to disappear tomorrow it would make little difference.

A constitutional traditionalist would dispute this. Despite the anomalies in Britain´s constitution, the traditionalist would argue, the country is not obviously governed any worse than most other rich countries. Nor does it seem at all likely to tip into despotism. Particular policies and governments may prove unpopular from time to time, but Britain´s parliamentary system of government has weathered huge social changes without the upheavals seen in many countries with written constitutions. Most other nations have been forced to adopt these after defeat or revolution. Britain faces no such crisis. Small adjustments may have to be made occasionally, as in the past. But why overhaul a system which has evolved over 300 years and whose accumulated wisdom has been imitated around the world?

The trouble with this view is that it relies on a misreading of Britain´s own constitutional history. The key concepts pioneered by Britain which have had so much influence on democracy elsewhere-the separation of the executive, legislature and judiciary and the protection of fundamental rights from the encroachments of an over-mighty government-were born of parliament´s battle to restrain the monarch in the 17th and 18th centuries, but never firmly established in Britain itself.

In 1765 William Blackstone, the leading English legal authority of the time, wrote that the total union of the executive and legislative branches of government “would be productive of tyranny.” Over the next century such a union is precisely what Britain achieved. The cabinet in effect assumed the executive role of the monarch. With the extension of the voting franchise to middle and working class men and the rise of mass parties, the cabinet (and the prime minister) could stay in office only by exerting an iron discipline on its party supporters in the Commons, further concentrating power in its hands. By 1867 Walter Bagehot was praising the cabinet´s control of nearly all government affairs, its “near complete fusion of the executive and legislative powers” as the “efficient secret” of the constitution.

When Albert Venn Dicey came to write The Law of the Constitution in 1885, the book which has set the parameters for constitutional debate in Britain ever since, the British system of government not only bore little resemblance to the written democratic constitutions being adopted elsewhere, but barely made intellectual sense. In Dicey´s view the British constitution was based on two fundamental principles: the absolute sovereignty of parliament and the rule of law. There is an inherent contradiction in this. A truly sovereign parliament would be unconstrained even by the law, which it would be free to change at any time.

In fact, on many occasions when the law has stood in the way of British governments, this is precisely what they have done. The judiciary assessing and ruling upon this law is technically a separate branch of government and individual judges, once appointed, are free from political meddling. But they are chosen in secret by the Lord Chancellor, a serving politician who is both head of the judiciary and a member of the cabinet. Moreover, the powers of British judges are severely constrained. With no written constitution to guide them, they have lacked any legal authority to strike down an act of parliament as unconstitutional. Judges have recently become more active in reviewing the actions of government but, with the exception of European law, this judicial oversight has been mostly confined to deciding whether individual ministers have been acting within existing laws and guidelines set by parliament. This can be bothersome to ministers but, if they feel too bothered by a ruling, they can simply pass another law making their actions legal.

Ironically, parliamentary sovereignty seemed too extreme a proposition even for Dicey, its greatest champion. A committed unionist, he was appalled at Gladstone´s Irish Home Rule plan and complained, quite correctly, that it was a fundamental constitutional change. But his doctrine of parliamentary sovereignty left no distinction between constitutional changes and changes to the highway code (there is still no such distinction). So Dicey became the first to advocate the referendum in Britain as “the one available check on the recklessness of party leaders.”

Later, in 1913, he also argued that, if parliament passed Asquith´s Irish Home Rule bill, it would not be valid, and that Ulster unionists should resort to rebellion to stop this being implemented. So much for the absolute sovereignty of parliament and the rule of law. Dicey failed to get his referendum and Ireland was later partitioned after rebellion by Irish nationalists and threats of rebellion by Ulster unionists. National referendums have been advocated occasionally since Dicey´s day (mostly by Conservatives), but Britain did not get one until Labour´s referendum on membership of the EC in 1975.

There is another way in which to state the traditionalist case. This was featured in Friedrich Hayek´s The Road to Serfdom, the great Austrian economist´s statement of the case against collectivism. Hayek outlined the importance of the rule of law in a democratic constitution, which is that it provides limits to the government´s coercive power, and thus makes governmental behaviour more or less predictable. This provides individuals with the freedom to organise their own affairs safe in the knowledge that government will not be able to act in an arbitrary way, and with effective means of redress if it does.

Hayek claimed that although this rule of law is normally provided by a bill of rights or a constitutional code, in Britain it has been provided by tradition rather than written codes. Hayek may have been writing somewhat too kindly of Britain because he was sitting in the London School of Economics and focusing his attention on Germany and Russia. Nevertheless this view has been echoed by other commentators, such as Peter Hennessy of the University of London, who attribute the British system to the “good chap theory of government.” In other words, civil servants and politicians have been reliably good chaps, coming from “sound” social and educational backgrounds with shared values.

The trouble with this view is, first, that it was always somewhat misleading: tradition has frequently camouflaged abrupt changes. But even if it were once true it is now impossibly out of date. Britain is no longer run by a small club of good chaps; just as the City of London was forced to modernise and cease to rely on clubbish rules, so British government is going to have to accept that the clubbish era is over. Most of all, faith in the rule of law has been damagingly eroded: the ideas that justice is blind, that bureaucrats are impartial, that liberties are thoroughly protected are all under threat.

parliament is sovereign, but weak. The party system, first past the post elections and efficient party discipline give the government of the day immense power. That power is in turn shared only with the civil service. There are no effective checks on the power of the government beyond the general election, and thus public opinion expressed through the press. The judiciary acts as only a loose check, ruling on whether the government is obeying existing laws, but subject always to the truth that the government is capable of changing those laws at will.

What is more, this concentration of power in the cabinet has usually rested on a tenuous democratic mandate. No party since 1935 has won more that 50 per cent of the votes cast. Their minority victories have not stopped both Tory and Labour governments from claiming the right to steer the country abruptly in new directions. The Labour government of 1945 launched a massive nationalisation programme after receiving only 48 per cent of the votes cast. Margaret Thatcher launched her free-market counterrevolution after winning even less.

The electoral system has been brutal to third parties, for all practical purposes disenfranchising millions of voters. In the 1983 and 1987 elections the Liberal-SDP alliance received 25 per cent and 23 per cent of the votes respectively, but only 4 per cent of seats in the Commons. In 1992 the Liberal Democrats received 17.8 per cent of the votes, more than half of those cast for Labour, but only 3.1 per cent of Commons seats, compared to Labour´s 42 per cent.

In this system of “strong government,” cabinet ministers have been the exclusive arbiters of what the public should know. British governments run by both main parties have been among the most secretive of all the western democracies, refusing to grant the public, from whom they are supposed to derive their legitimacy, any legal rights to information about, or held by, their government.

With no bill of rights to constrain them, both Labour and Tory governments have extended police powers, restricted press freedom, and suspended the ordinary workings of the criminal law. Britain has the worst record of any European nation before the European Court of Human Rights. In 1994 the government virtually abolished the right to silence in criminal trials after little debate in the Commons. The measure is contained in a mere four sections of a giant 169-section statute. Whatever the merits or demerits of this action it did, at a stroke, eliminate a right which had, for centuries, been thought a pillar of Britain´s judicial system.

The lack of a codified constitution has allowed governments to innovate in ways which, in most other democratic countries, would be deemed to involve constitutional change, and so be subject to special procedures to win the consent of the electorate. Since 1979, for example, the Tories have drastically reduced the powers of local authorities.

When it comes to Europe, the huge discretion in the hands of British governments has led to a constitutional catastrophe. The Tory government which led Britain into the EEC in 1973 explicitly promised in a 1971 white paper that membership presented “no question of any erosion of essential national sovereignty.” Constitutional implications were also played down during Labour´s referendum two years later, and were brushed aside by the Thatcher and Major governments when they signed the Single European Act and the Maastricht treaty. In fact, membership has blown a hole through the middle of Dicey´s doctrine of parliamentary sovereignty. The Tory Maastricht rebels were correct, at least about this.

Pooling powers with Britain´s EU partners may be in the country´s longterm interests. But even an avid pro-European should feel uncomfortable that such a momentous change to Britain´s system of government was made without consulting the electorate. France and Germany, like other EU countries, made explicit changes to their written constitutions to endorse the transfer of powers to the EU. Britain seems to have sleepwalked to the same destination.

the consequences of this use and abuse of the concentration of power in the cabinet have been enfeebling rather than crippling, but that still makes them serious. There has been a gradual erosion of support for the political system and of faith both in government and in the judicial system, as the checks on government have been shown to be inadequate.

For this reason there is increasing interest in reform. A Mori opinion poll for the Joseph Rowntree Reform Trust, published in May 1995, found 79 per cent of respondents in favour of a written constitution, 79 per cent wanting a bill of rights, 81 per cent for a freedom of information act and 77 per cent supporting the more frequent use of referendums.

In principle, that ought to make reform more or less inevitable. But it is not. One basic obstacle to reform is the fact that the most commonly proposed changes are meant to reduce the power of central government, but can be pursued only by the party in power which, naturally, finds this prospect less than appealing. In this century constitutional reform has been, typically, far more attractive to oppositions than to governing parties. The Tories flirted with reform in the 1970s while out of power, when Lord Hailsham famously complained that Britain´s constitutional arrangements were moving it towards an “elective dictatorship.” Ensconced on the Woolsack a few years later as Thatcher´s first Lord Chancellor, his interest in radical reform evaporated. If Labour wins the next general election, after nearly two decades in opposition, it could undergo a similar transformation. Labour´s leaders are already sounding less enthusiastic about some of the party´s constitutional promises.

The biggest obstacle, however, is not the lethargy or self-interest of politicians, but the ingrained conservatism which runs through both main parties and the wider electorate. Most Britons are suspicious of grand schemes of improvement and reluctant to abandon the tried and true for the uncertainties of the new. The case for constitutional reform is a powerful one. But all too often its advocates assume that the need for reform is obvious, and opposition to it merely self-interested.

Traditionalists are right to argue that Britain is not facing war, revolution, or political collapse. But they are wrong to assume that it is only some wrenching crisis which justifies or makes possible constitutional change. Though few democratic nations have faced the kind of top-to-bottom changes now advocated by British reformers, many other countries (Canada, New Zealand, and Australia are recent examples) have made significant constitutional changes without facing such a crisis.

In the end, the case for the introduction of a genuine rule of law, using a bill of rights and a constitutional code to define the limits to government action, and empowering the judiciary to act as constitutional custodians, must rest on the myriad of grievances and imperfections that have been seen and felt in Britain in recent years. Only through such real grievances will popular opinion be won for change.

One reason for optimism about change is that proponents of such change now have a multi-party base. Labour has in the past been the most frequent advocate of constitutional reform, partly out of opposition to entrenched privilege (as in the House of Lords), partly to paint itself as tribune of the people against big government. That desire has foundered not only on Labour´s self-interest when in power but also on a political contradiction: Labour claims to favour freedom but has actually, through its big government urges, encouraged coercion. Tony Blair is changing this: although he has shown some interest in communitarianism which is ultimately coercive, he leans towards smaller government, market-based policies and an emphasis on personal freedoms. If he gets his way he will be closer to a social democrat or even a Liberal, than to old Labour.

The Liberal Democratic party, when it resists big government solutions, has always harboured philosophical leanings appropriate to the dispersal of power and the entrenchment of the rule of law. The big questions, however, lie in the Conservative party. For the time being, the Conservatives look ineluctably opposed to constitutional reform. John Major has declared himself against devolution, against the dispersal of power and, in effect, against a bill of rights. Even Tory radicals such as John Redwood and Michael Portillo have declared for parliamentary sovereignty and against reform.

But true Thatcherism, based on the ideas of Keith Joseph, Arthur Seldon, and Friedrich Hayek, should favour the rule of law. Shrinking the state merely by reducing public spending and public ownership ought not to be enough; it can be reversed by subsequent governments. To fulfil the Thatcherite and Hayekian ideal you need permanent restraints on the activities of the state, restraints that subsequent governments will find it very hard, or preferably impossible, to overturn. Only then can the individual really be protected against coercion by the state; only then can the individual safely organise his affairs free of the fear of arbitrary interference.

A certain arrogance assumes that as long as Tories dominate the government, “good chaps” will be in charge and the individual will not need to be protected. In opposition, with the prospect quite possibly of a long period out of government, this view could change. The Tory right will need a new rallying cry. Hostility to Europe will not do. Restraining the state, completing Thatcher´s task, entrenching the rule of law-those are the principles that could, and should, rally the right again.