Political commentary
A Bill of Rights
Patrick Cosgrave
When, more than ten years ago, I began to write for The Spectator the then editor, Mr. Nigel Lawson (now Conservative MP for Blaby), suggested that I should attempt a series of essays arguing the case for a written British constitution, or at least an enforceable Bill of Rights. I demurred, for I had the traditionalist's powerful prejudice both against written constitutions in general and against any attempt to summarise the mystery of the British constitution in writing in particular. In vain did Mr Lawson urge the precedents both of Magna Carta and the 1689 Bill of Rights: like most other people who had then considered the matter, I would not budge. Like many others, I have changed my mind.
It is right that Mr Lawson should be given credit for his early percipience, for it was not until 1968 that Mr Anthony Lester, QC, in his Fabian pamphlet Democracy and Individual Rights began the present debate. In April 1969 Lord Lambton raised the subject in the House of Commons. He was convinced, he said, that the nature of modern legislation was such that it produced a gradual erosion of the traditionally accepted rights of the citizen. His argument was subsequently supported by a debate in the House of Lords, initiated by Lord Wade; a ten-minute rule Bill in the Commons, introduced by Mr Ernlyn Hooson, QC, and a Liberal Party pamphlet by Mr John Macdonald. Between 1971 and 1974 Mr Sam Silkin raised the matter on several occasions and in December of the latter year Sir Leslie Scarman, in the Hamlyn lectures, deployed powerful legal arguments in support of the idea. Finally, and to return the matter to politics, Sir Keith Joseph, addressing Conservative lawyers on March 17, 1975, gave his full support to the proposition. In particular, he emphasised an aspect of the debate that had not always been kept in the forefront of consideration: challenging in a most courageous way the deeply inbred British belief in the sovereignty of Parliament Sir Keith suggested that the untrammelled ability of the House of Commons in particular to pass whatever laws commanded the support of a majority, however small, should be curbed. "If we are to save the law from Parliament," he said, "and Parliament from itself, we need a new safeguard."
The pot is now bubbling merrily: in an important recent pamphlet A Bill of Rights? (Barry Rose for the British Institute of Human Rights, E1.75) Dr Michael Zander, Reader in Law at the LSE, summarises the arguments for and against a Bill of Rights, and concludes that the best method of proceeding would be to give the European Convention on Human Rights force in English law. This proposition has been canvassed before: it has usually been rejected because of dissatisfaction both with the uncertainty and vagueness of some parts of the Convention, and because of frequently justified criticism of the procedures of the European Court. There has been, moreover, considerable unwillingness to import into this country a Convention which, however international, is nonetheless foreign, especially considering our substantial and prolonged satisfaction with the state of civil liberties in the United Kingdom compared to so many other countries. Nonetheless, the fact that over a period of seven years the European Commission found forty-three cases against Britain to be admissible should, whatever our reservations, reduce our complacency somewhat.
Apart from ingrained prejudices and convictions there are, however, other difficulties facing the introduction of a measure which, on the face of it, seems undeniably worthy. There are both political and legal dimensions to the question, and some of the problems may be indicated by a review of the record on the matter of our most formidable lawyer-politician, Lord Hailsham. I recall discussing the subject with Lord Hailsham in 1969, when he was beginning to move in favour of a Bill of Rights supported by legal sanctions. One of his strongest reservations (still shared by Lord Devlin) concerned the role such a Bill would give to the judiciary. Judges, he feared, would be politicised (as, subsequently, it may be considered Sir John Donaldson was) by having to enforce such a Bill. There is undoubtedly still considerable force in this objection. For example, the present Labour Government's plans to introduce legislation on education which, together with its present policy on the subject, will restrict parental choice of schools, may well be in breach of the first protocol to the European Convention, article two of which requires the State to "respect the right of parents to ensure such education and teaching as is in conformity with their own religious and philosophical convictions." But it would be hard indeed to persuade a Labour Minister out of respect for such a provision to abandon one of the most cherished of his party's convictions.
Anyway, in 1969 Lord Hailsham published New Charter: it had the same emphasis as Sir Keith Joseph's recent speech, arguing that Parliament had become "virtually an elective dictatorship." In 1970, however, Lord Hailsham intervened in a House of Lords debate initiated
by Lord Arran: he then opposed any form of written constitution partly because he could not see any way to prevent Parliament from subsequently undoing some of its provisions and he was uncertain on the subject of a Bill of Rights. By 1975, however, Lord Hailsham 111a, series of articles in the Times again revise° his opinion, again because of what had bees happening in Parliament: "the enormous power of the executive" within that institution, he argued, made a written constitution nee°. sary. I give this account of Lord Hailsharn's changes of mind not to guy him, but to stress the practical difficulties in the way of anybodY who wishes to enact a Bill of Rights. Unlike Dr Zander and others Lord Hailsham remains opposed to the simple device of adopting the European Convention as English law, for he regards British problems as too individual an' peculiar to this country to be soluble solelY through the adoption of an international convention. Thus the debate so far. It seems to Me, 'WM had hitherto believed that the absolute over' eignty of Parliament was the chief glory of the, British constitution, that the necessity 0' restricting the powers of the House of Corn' mons or, more accurately, the power withi,11 that institution of the majority of the day the most important consideration so far to have surfaced. In my column last week I praised thei House of Lords as at present constituted, but , praised it in the main for its detailed work 0' legislative revision: nobody could seriouslY pretend that since the Parliament Act of 1911' and the subsequent similar Act of 1949 b°th of which very substantially reduced the poWer of the Upper House the Lords can act as af regular or effective check on the ambitions ° Commons majorities. Yet, historically, the, British Constitution is supposed to consist °' checks and balances: the seventeenth cent"); saw the Commons fighting to redress excess Royal power; the eighteenth frequently sal! George III check the abuses of a corruP` Parliament. But the monarchy today is evell more ineffective for this role (it has, of course' many other, and equally important uses) than the House of Lords. Nor can anybody seriouslY argue that the Parliamentary Commissioner (0r 'Ombudsman') has, in spite of the high Wel prevalent when his office was set up, prove' more than marginally useful in restraining the excessive use of bureaucratic authority. Finally, it ought to be said that the traditional British system of Common Law in effeeti judge-made law under which judicie common sense was frequently a corrective t° executive pretensions, is in desuetude. Ever!, Lord Denning, who has been bolder than other modern judge in interpreting statute laW in the light of humane considerations, finds l increasingly difficult to use the Court of ApPea as an instrument for the protection of huMan rights and common justice. With the additi°11 of fifteen hundred pages to the statute boolc each year, and given that European Communi' ty law is now enforceable in British courts' some less opaque and ambiguous protection for the individual is needed, I do not, however, agree with Dr Zander that our acceptance and enactment of the Enrol:keen Convention is the right answer. I am c0n. vinced, moreover, that the major difficulty In the way of a Bill of Rights will be the provision made for its entrenchment and, in particular, the taking of measures to prevent the House 0' Commons from revising it. What sort of Bill We should have, and how its provisions could l/e protected, I will discuss next week.
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