Political commentary
Government is the enemy
Patrick Cosgrave
In the argument for at least a Bill of Rights, and possibly a written constitution which I surveyed last week there have been two distinct strands. One is what might be called the positive strand it visualises a Bill of Rights as a positive instrument of human betterment. The other is negative it sees the Bill merely as a way of warding off evil. Broadly, those with left-wing sympathies in politics have supported the first strand, and those with conservative sympathies the second. Yet, there is also a certain, almost unconscious, cross-fertilisation between the two. Thus, for example, in his 1968 pamphlet Mr Anthony Lester writes regarding the suggestion that the implementation of a Bill of Rights should be left to the judiciary a suggestion which he opposed "It might take years to get the English Bench to interpret a Bill of Rights as a living document rather than an Income Tax Act." In this passage, clearly, Mr Lester sees the Bill as a positive, changing inst-ument. Elsewhere, in his comment on the 1968 Immigration Act, he observes that, in this and other instances, " . the hallowed safeguards of our Parliamentary system were swiftly swept aside. Constitutional conventions, the sense of fair play of our legislators, the conscience of individual Members of Parliament, the Opposition, the independent judiciary, the press, and public opinion were of no avail."
In that passage Mr Lester was, clearly, above all concerned with the rights of the individual against whoever, including Parliament and government, might threaten him. But in still another section of his pamphlet Mr Lester lists threats to the citizen as coming from "Parliament, the Civil Service, local government, or those clusters of private, oligarchial power which compete with Government in significance and scale." Here the implication is that government, and the intentions of govertment, are good that, so to speak, the danger to the citizen lies in the frustration of those good intentions by competing sources of power.
It seems to me, as I suggested last week, that the crucial point of the whole argument is the one that stresses that government, and Parliament as an instrument of government, is the enemy. It is over-government, and the intervention, often arbitrary, of politicians and bureaucrats alike in the private and family affairs of the citizen, which has given rise to the agitation for a Bill of Rights. This leads to two conclusions. First, the function of a Bill of Rights (or a constitution) should be negative: it should prevent abuse, not encourage the doing of things. Second, if I am right in arguing that government is the enemy, the rights enshrined in a Bill of Rights must be protected by an extra-parliamentary authority. And that cannot be other than the judiciary.
It is conceivable that Parliament might be persuaded, under the pressure of public opinion, to turn as such as Dr Michael Zander would wish the European Convention on Human Rights into a British Act. It is conceivable that even a more ambitious document might gain legislative assent once. But it is not conceivable that such an Act, once passed, would not be subject to amendment both drastic and quick in the event that it suddenly suited the interests of government to do so. The essence of the 1968 Immigration Act was that it deprived citizens of rights which, it was hitherto agreed, they possessed; and the act of deprivation was committed by government with the collusion of most of the Opposition. Tlie United Kingdom citizens who by that Act lost their right of entry to this country had no power at their back to protect them, once a parliamentary majority decided to take their rights away.
I conclude, therefore, that the simple passage of, say, the European Convention into British law would be as little effective as the establishment of the office of the Parliamentary Commissioner. What is really needed is a Supreme Court.
Here one must face a difficult party political point. In the nature of things Labour governments are more intrusive than Conservative ones. After all, the driving impulse of Socialism is to change things; the driving impulse of most Conservatives is to keep things as they are. It is hardly surprising, therefore, that Lord Justice Scarman's powerful arguments for a protective Bill of Rights (in the Hamlyn lectures) met with a great deal of criticism from t1ie left. Likewise, the present Labour Government's educational policy, and Mr Michael Foot's frightening judgment (which it is not even clear he had the authority to make) that the six men dismissed from Ferrybridge because they refused to join the dominant union at the plant should be denied unemployment pay, quite simply could not have happened under a Conservasive government. However, there are an increasing number of members of the Labour Party who fear the activity of government as such, and it may be that they can be persuaded to abandon
some of the ambitions of their political philosophy or at least postpone the implementation in the interests of the citizen. For some time, however, and especially in the circumstances that prevail in Britain today, the case for a Bill of Rights is bound to have a Conservative tinge, and bound to be more palatable to the leaders of the Conservative Party than it is to those of Labour. But none of this is to say that Conservative, governments have not frequently offendeur against what is generally felt to be the rights ° the citizen. The Macmillan government's retrospective legislation on Burmah oil Was a; gross offence. Many aspects of social engineering in the Heath government's reforrn of local government were likewise dictatorial. Under a Conservative as under a Labour government the text of the 'A' Code, governing the administration of supplementary benefits, was kept secret. The motto, therefore, remains the same governments cannot be trusted; and neither can politicians. What would be fatal for the, cause of those who support the idea of a Bill ° Rights would be to settle for a second °r third, or fourth, or fifth best; like the enactment of the European Convention. Let us, then, have a written constitution. Itsi models should be two the Canadian Bill e,„ Rights and the European Convention. Probah'Y it will have to be drafted by a Royal Conunis' sion, but the members of that Commissi°t,. should be charged with the task of writille clauses which enshrine the right of the individual as against government of any a01,eu„ri Attached to the constitution would be a coae" administrative practice. This should tote„115,. prohibit secrecy in bureaucratic practice. r° example, a planning decision not communi ' nat ed at the moment of its inception to all residents affected by it would become illegal. 1V10re„ generally, any citizen who felt that his interes" had been insufficiently consulted in the maktligf of an administrative decision by which„t mean one made by a Civil or Public ServeL, rather than by a politician could appeal to tn" Supreme Court, and the terms of the constitei tion would encourage the members of tilaf Court to find for the individual in cases 811 doubt and against the bureaucrat.f inefficiency would result, and a great deal e government would become less expeditious. But there could be no harm, and possiblY great deal of good, in that. The Supreme Court should consist of judge,: elected by their fellows. When Mr Lester wr°; in 1968 he was unwilling to entrust t'llt guardianship of a Bill of Rights to judges. seems to me, however, that the administratioPd of a system essentially legal could be hande f over to no other body. And the worst vices °, the American Supreme Court the politicl nature of the appointments could be avoicle" if the judges themselves chose from atit°,111,ge their own number the priesthood to whorn 1." defence of the citizen should be entrusted. No doubt a considerable part of this argu. ment may seem Utopian. But constitutions ,,,which, as Napoleon once said, should be 511°'; and obscure are born of circumstances. Oh American constitution was so born. A Britiss constitution today should be born of a 1 awareness of the need to defend the individut against the impositions of the executive. Andble is fitting that its administration should. 5 entrusted to judges who, over the centulley' have handled Common Law well, on the wh° A Their influence has in recent years decline; because of the immense quantity of statute l5 and it should be restored.
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