Free Life 24, December 1995, "A Written Constitution for the UK", Reviewed by Sean Gabb
From Free Life, Issue 24, December 1995
ISSN: 0260 5112
A Written Constitution for the United Kingdom
The Institute for Public Policy Research
Mansell Publishing Ltd, London, 1995, 286pp, £18.99 (pbk)
(ISBN 0 7201 2272 4)
This book supplies a draft constitution for the United Kingdom, comprising 129 articles and six schedules. It was written by a committee of Guardian readers - people like Lord Lester, Patricia Hewitt, Geoffrey Bindman, David Marquand, and Clive Ponting - and is everything one might expect of such authors. Certainly, our present arrangements are defective. During the past century, power has been both enlarged and centralised; and the protections of life, liberty and property no longer work as they should. But though reforms are needed, they are not the ones here proposed.
Most obvious, I cannot see the point of a full-dress constitution. These do make sense in newly independent or revolutionary countries. But for us, they must largely be a waste of paper and ink. Look, for example, at Article 41.1:
There is established by this Constitution the office of Prime Minister.
We do not need the biggest upheaval in a thousand years of constitutional history to tell ourselves this. It is the same with much else in the Article. Requirements that the Prime Minister should be a member of the House of Commons, and should resign after losing a motion of confidence, are already enforced by convention; and I see no case for solidifying these conventions in law. They arose and continue to exist because they have been found useful. But there is no reason to suppose that they always will be useful, or that, if circumstances change, there will be time for an amendment. One reason why the administrative parts of our Constitution work so well - and yes, these parts do work well - is that they are so flexible, so adaptable to momentary needs. The most suitable Prime Minister has not always been a member of the House of Commons when appointed; and we cannot predict future emergencies. At best, we can suppose that this requirement will be ignored when necessary, at worst that it will prevent the smooth working of government at a time of crisis.
But let us go to the bill of "Fundamental Rights and Freedoms", set out in Articles 2 to 29. Now, unlike the administrative parts of a constitution, these should not be flexible. A bill of rights should be as comprehensive and tightly drawn as possible. The less it includes, the more exceptions it allows, the greater the chance it will be bypassed by the politicians and special interest groups.
The authors, however, seem not to have noticed this, or seem not to care. On the one hand, their bill is incomplete. It puts no bar on that favourite device of British and American governments, the use of civil proceedings to achieve what has been denied by the criminal law - a strange oversight, at least for Mr Ponting. On the other hand, it is thick with exceptions. Rights given in one clause are withdrawn in another.
Take Article 11, "Freedom of Expression". This starts with all the usual promises - then continues:
11.3 The exercise of this right carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but only such as are provided by law and are necessary in a democratic society - ...
.2 for the protection of national security or of public order or of public health or morals.
This might allow a judge to stop a govenment from shutting down the opposition press just before an election - though a government willing to do that might not be too concerned about a court order. But for stopping the censorships we actually have, it is useless. Indeed, much of the wording here is copied from the European Convention; and this has not prevented the outlawing of pornography here, nor in France and Germany of holocaust revisionism. Nor will it prevent any of the laws against "hateful speech" now being made up to gag dissidents in the United States. There are people, of course, who will reply "And a good thing too" - which is exactly why freedom of speech needs a better protection than this legal mush.
The same is true of Article 4, "Freedom from Slavery and Forced Labour", and Article 14, "Right to Enjoyment of Possessions". The first allows both conscription and "any work or service which forms part of normal civic obligations" - whatever some future judge might decide that to be. The second does not
in any way impair the right to enforce such laws as may be necessary to control the use of property in accordance with the general interest....
I imagine "the general interest" is intended and will be interpreted to mean all the usual interferences, plus many others as yet unknown.
But the real horror is Article 24, "Abuse of Freedoms":
Nothing in the Bill of Rights shall be interpreted as implying for any group or person a right to engage in any activity or perform any act aimed at the destruction of the rights and freedoms set out herein.
Here we kiss goodbye to the limited protections discussed above. Persuade a judge that porn equals rape, or that Bernard Manning is the prelude to a second Auschwitz, or that the Moonies are mind controllers, or that "passive smoking" is an infringement of the right to life - or complain about anything else the Establishment may currently dislike - and we are back where we started, with an unlimited state.
Moving on, Article 27 lists various "Social and Economic Rights" - "the right of everyone to an adequate standard of living", "to social security", "to education", "to enjoy satisfactory health and safety conditions" at work. There is even a right "to the highest attainable standard of physical and mental health"! But whatever else can be said about these things, they are not rights. Unlike the rights to life, liberty and property, they carry no negative obligations as their reciprocal. What obligations they do carry are positive and often unlimited burdens, falling most likely on employers or taxpayers.
For once, the authors seem aware of this defect. By Article 27.3, they provide that:
The Provisions of this Article are not enforceable in any court.
But, in that case, why bother with it? The authors of this draft are described on the back cover as "a team of distinguished constitutional lawyers and political scientists". That is, they are people who ought to know the difference between a constitution and a manifesto. The first is a document where every word of every article is likely to be pressed in court for a meaning. Before any article is included, then, the appropriate question is not "Does it arouse fine sentiments in the reader?" but "What legal effect will it have?" It should be asked: What acts does it prohibit or enjoin? To what class of legal action can it give rise? In conjunction with which other articles is it to to be read, and how is to to govern their interpretation? What is a court to make of it? Yet Article 27 is nothing, so far as I can tell, but a mass of needless words. It contributes nothing towards the restraint of power. Insofar as it gives a corrupt or incompetent judge words to twist to a meaning of his choice, it tends to frustrate the very purpose of having a constitution.
Or perhaps the restraint of power is not its real purpose. Reading through this draft, I was at first surprised by the apparent sloth and incompetence of its authors. In their commentary, they talk of entrenching liberty and democracy, yet in fact deliver a constitution that would not seriously impede Fidel Castro. But then I noticed a requirement in the Preamble for
government policies consonant with membership of the European Community and the furtherance of the objectives of the Community....
Then I noticed Article 1.3:
This Constitution recognises and gives effect to the obligations assumed by the United Kingdom as a member of the Community of Nations and of the European Community.
Then I noticed Article 50:
The law of the European Community has effect in the United Kingdom as provided by sections 1 to 3 of the European Communities Act 1972 (as amended by the European Communities (Amendment) Act 1986), and those sections have effect as part of this Constitution. [My italics]
And then I began to understand. Where everything else is redundant or vague to the point of looking bodged, these Articles have a very clear meaning. At the moment, foreign treaties cannot be enforced in this country unless incorporated into law by Act of Parliament. The one exception is our membership of the European Union, where Parliament has delegated some of its legislative power to the European Commission. However, this delegation can be altered or revoked just as Parliament sees fit. These Articles would change that. In the first place, they can be amended only by a two thirds majority of all members in the House of Commons and in the Second Chamber. In the second, they provide for the automatic incorporation of treaty obligations into law. Never mind the fanfare with which Article 51 gives Parliament the right to accept or reject treaties: after that one act of acceptance, all subordinate regulations must immediately become British law. Direct legislative powers will have been given not merely to the European Commission, but also to NATO, the United Nations, and any other organ of the "Community of Nations" minded to interfere in our affairs.
So here it is. The only certain function of this draft constitution is to cement us into a European Superstate. Beyond that, it does far less to restrain than enable domestic oppression. All considered, I prefer Michael Howard and the ruins of our present Constitution.
Marian Halcombe (Sean Gabb)