PREFACE

I wrote this at the beginning of November 1990, while Margaret Thatcher was still Prime Minister. It sets out a case for using our membership of the European Union to bind Parliament with a liberal bill of rights, and contains a proposed bill, together with a commentary. Yes, it is a bizarre fantasy. I suggested that my bill of rights should be approved at the conference from which the Treaty of Maastricht eventually emerged!

In justification, I can say that I wrote it to order. The Adam Smith Institute was trying to persuade everyone that the European Union could be reformed; and hired me to provide a bill of rights. I am told this was actually published - though I never saw a copy.

This version is published with the full consent of Eamonn Butler, of the ASI.

Sean Gabb - 5th May 1997.

INTRODUCTION

During the next fifteen years, it is almost inevitable that the newly liberated nations of Eastern Europe will seek and obtain admission to the European Community[1]. There are some statesmen to whom this is a gloomy prospect. Until the autumn of 1989, it seemed that the Community had reached the limits to its further expansion. All that seemed to remain was to merge its constituent parts into a single political whole, federal in name, but bureaucratic and centralised in fact. The collapse of the Soviet Empire has frustrated this plan. The nations of Eastern Europe are already applying for membership. Who will be able to resist them more than a few years? As Margaret Thatcher has said: "We can't say in one breath that they are part of Europe, and in the next our European Community club is so exclusive that we won't admit them"[2]. She has already committed the British Government to their support. When once before she described her vision of how the Community should develop, she was variously laughed at and denounced. Now, it looks as if that vision will become reality. Our children may grow up not in a United States of Western Europe, but in a vast Europe of nations, extending from Lisbon to the Urals, independent but also joined by a common faith in democracy, free enterprise and the rule of law.

In the same speech, Mrs Thatcher also proposed that there should be a "European Magna Carta", to "entrench for every European citizen, including those of the Soviet Union, the basic rights which we in the West take for granted"[3]. This is a splendid proposal, and one that ought to be taken up without delay. We suggest only one alteration to it. The Prime Minister's intention appears to be for for this document to be adopted at a meeting of 35 European nations, East and West. With all respect, we recall that the Helsinki Declaration of 1975 was adopted at a similar type of international gathering; and, notoriously, it remained a mass of fine words on paper. The Balkans apart, it may be that tyranny has vanished, or is vanishing, from the Continent. It may be that Declarations will in future be paid more respect than in the past. But an entrenched Bill of Rights, by its nature, requires constitutional machinery for its enforcement. Accordingly, it strikes us as by far the most economical and durable arrangement for the Bill to be incorporated into the Treaty of Rome, then to become part of the national law of each new member state. The obvious time and place for doing this is at the Community intergovernmental conference that is to meet this coming December to discuss political union. Beyond this one alteration, the proposal is without fault. It is the noblest reponse by any head of government to the Glorious Revolution in the East. It is not for a Magna Carta, but for a Maxima Carta. Given effect, it would mark the real beginning of the new Europe. Beyond its declaratory value, it would produce two benefits.

THE BENEFICIAL EFFECTS

Eastern Europe

In the first place, it will fix the liberties of Eastern Europe. The peoples there have just overthrown some of the most hateful tyrannies that ever existed in the civilised world. They want freedom and they want the prosperity that only freedom brings. But desire by itself may not be enough. Freedom, if it is to last, requires a strict rule of law. It requires a willingness to govern, and be governed, in accordance with laws definite in meaning and universally applicable, laws published in advance and interpreted by independent courts - laws that it will not in every particular case seem advantageous to observe[4]. It requires essentially an avoidance of government by short cut: and in no other part of Europe will governments be so tempted as in the East to take short cuts.

There are political criminals to be punished. There is confiscated property to be put back into private hands. There are innumerable other problems to be solved. At any time - but above all after a revolution - what is expedient may not always be what is just. Unless reinforced in some way, the desire for a great but unspecific benefit, enjoyable over time, is often weaker than the desire for a lesser but more specific benefit, enjoyable at once. Certainly, new constitutions are being drafted in the East. Doubtless, they will contain all the usual guarantees of due process and individual rights. But written constitutions alone have never restrained power. If amendable, they will be amended. If not, they will be swept aside by a fresh revolution. The experience of the past two centuries, if it has shown anything, has shown this repeatedly.

The best reinforcement by far of the rule of law is that provided by tradition. There is in the average human mind a strong and often useful association between what always has been and what always must be. Nothing else has ever served so well to keep not merely a government but an entire people to the path of right and justice. Where such a tradition exists, it is the clear duty of any liberal to defend it and hold it up for popular veneration. Where one has previously existed but been lost, the duty is to seek by all means possible to revive it.

But Eastern Europe has no tradition of constitutional government. That part of the Continent was always the least populated and the most backward. Even when benevolent, its rulers were always despotic. Only towards the end of the last century were free institutions allowed to develop. Without exception, these were quickly destroyed.

During the first half of this century, the constitutional traditions of almost every European country were submerged by a great flood of tyranny. But those of the West were old and solid. Those of the East were new and flimsy. The West had National Socialism. the East had both National Socialism and Soviet Socialism. In the West, the waters soon receded, leaving the buildings damaged but largely intact and capable of repair. In the East, the waters were dammed in for two generations. When after a great struggle, the dam was broken and the land drained, nothing was found but rubble. A new beginning must be made. This will be made all the sooner for what help can be given from the West.

It must be made absolutely clear to the new legal governments of Eastern Europe that there are certain standards of conduct to be met before their countries can be admitted to the Community. A Community Bill of Rights would allow no mistake to be made as to these standards. Just as at present a country prepares for entry by imposing VAT and subsidising its farmers, so in future one will prepare by adopting and scrupulously observing the Bill of Rights. The restraints that cannot be provided by tradition must be provided instead by economic interest.

Western Europe

In the second place, the liberties of Western Europe are in need of fixing. For, despite their age and solidity, the constitutional traditions of the West have been subject to erosion. Though great, the evils of National Socialism were transient. But the lesser evils of democratic socialism have been more continuous. In many respects, the twin doctrines have come close to prevailing - that the immediate will of a majority should never be frustrated, and that the best government is the one that governs most. No Western country has yet been transformed into a majoritarian tyranny; nor is it likely that one will be so transformed in the forseeable future. But it cannot be denied that neither economic freedom nor the rule of law is fully respected in any of the member states of the Community.

Great Britain

The Existing Safeguards of our Liberty

Perhaps the worst offender in this respect is Great Britain. Unlike all of our Community partners, we have no formally entrenched laws. In the past, we had no need of them. Without a written Constitution or Bill of Rights, we enjoyed a wider and more secure freedom than any European people[5]. The rule of law that they have been, and are, struggling to realise, we once enjoyed as an immemorial birthright, and its fullest and most perfect development. Some of that birthright we still possess. It has always been the main protection of our rights.

We have, for example, no explicit right of freedom from arbitrary arrest and detention. But in England, it is still generally the case that no one may be punished or made to pay damages except for a distinct breach of the law established in the normal legal manner before the ordinary courts. No public official, for whatever reason, is permitted to exceed those powers. If he does exceed them, he becomes liable to an action for damages in the civil courts or to a criminal prosecution. For there is in our law no general discretion allowed to the authorities. Neither administrative practice nor even state necessity is accounted a good defence by the courts. But each interference with life or property is excused only if it can be justified by statute or by some principle of the common law. In defect of justification, it is accounted a trespass no different in nature from any similar committed by a private person.

Again, there has never been an explicity stated right of free speech. No aggrieved editor has been able to go into Court and produce a Constitutional guarantee of his right to publish. Instead, there is no special law relating to the press. No one is required to take out a licence before starting a newspaper, or provide a bond for any damages that might be awarded against him, or submit copy in advance of publication to a government censor. There is no legal distinction between the Editor of The Times and anyone who sticks a poster in his front window. Either who breaks the law is answerable in the ordinary courts by exactly the same process[6]. Otherwise, publication is entirely free.

The Chief Danger to our Liberty

Above the courts, however, stands an absolutely sovereign Parliament. It possesses, said Dicey, "the right to make or unmake any law whatever; and... no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament[7]. It could put a man to death today for having done yesterday what was not illegal. It could repeal the Act giving India Independence and appoint a new Viceroy. It could enact that the square of the hypotenuse was not equal to the square of other two sides. These laws would all be accepted as binding in the British courts.

During the 18th and 19th centuries, these incompatible doctrines, of the rule of law and of Parliamentary sovereignty, were held together by political self-restraint. Though Parliament could do as it pleased, it seldom passed laws in derogation of rights protected by the common law. But this self-restraint derived from a set of traditions that have throughout this century gradually decayed. Today, the two doctrines stand in mutual opposition. Whoever holds one cannot in all consistency hold the other. Anyone who supports the rule of law as it has developed in England and been admired and often copied throughout the world - and that means all liberals and many members of the Conservative Party - is bound to fear the unbridled legislative supremacy of Parliament.

The Structure of Parliament

To be sure, formal sovereignty rests with the Crown in Parliament as a whole; and the old theory of the Constitution placed much emphasis on the limitations on power produced by its separation. But the Lords have not been co-equal with the Commons since the 17th century. The Acts of 1911 and 1949 only effect by statute what had long ago been largely effected by convention. No Monarch since Queen Anne has rejected a Bill that has passed through both Houses. No Monarch since George III has intervened to procure the defeat of a Bill in either House. No Monarch since William IV has dismissed a Ministry. All these powers remain to Her present Majesty. But they are powers that could be used only in a crisis, and only after it was clear that the existing Ministers had lost all public confidence. Practically, sovereignty is and has long been possessed by the House of Commons.

Political Convention

There is the more recent doctrine, that our rights are protected by the conventions of everyday politics. First, Members of Parliament are said to keep a close and jealous watch on the Bills that are brought before them. Their duty is to have at heart the interests of their constituents and of the people at large. But this has become another constitutional fiction. The average Member is a political appointee. His seat is, by means more or less direct, in the gift of his party leaders. He is paid a salary that may constitute his entire income. He probably wants office; and that is earned as much by docility as by ability. Accordingly, he will vote for or against Bills just as his leaders tell him. There are some independent spirits on the back benches. But these are unable to keep more than a perfunctory watch on what is enacted. The current Parliament adds at least 3,000 pages every year to the statute book, and allows another 2,000 separate Statutory Instruments. No one can absorb all this torrent of paper. Quite often, no one so much as reads it for logical or grammatical flaws; and the Judges are left to find a meaning in an Act where the drafters themselves would have trouble explaining one.

Second, Members are said to keep watch over the executive. No one may go into court and call a particular Act in question on the grounds of its repugnance to some fundamental law. But he may seek through his Member to have a grievance aired in Parliament and have the relevant Minister or Ministers called to account. In 1987, Stuart Bell, the Member for zxzxzx, was approached by a number of parents whose children had been taken away from them by the Cleveland Social Services Department. On investigation, it was revealed that they had been taken without good cause. His investigation led to a full judicial inquiry and the disgrace of the doctors and officials resposible. As a direct consequence, the law was changed in 1989 to prevent similar abuses of power[8].

But the Cleveland Affair was an exeption to the rule, not an illustration of its working. It remains that most members are not in fact independent. One who sits on the Government benches will not gain what is accounted by the Whips a good name if he passes his time in exposing abuses of power, or in supporting calls for their investigation and suppression. One who sits on the Opposition benches will usually have more freedom of action. But it must be remembered that his leaders, while they have an undoubted interest in embarrassing the Government, have none in undermining or diminishing the powers that they hope in time to have for themselves. Nor has at least the Labour Party any wish to draw attention to those many kinds of abuse that are perhaps inseparable from overgovernment.

Even allowing that members do occasionally follow the dictates of conscience, it does not follow that redress will invariably be obtained. Accountability can be avoided by a Minister's invoking the rule that where the national security is concerned - and the definition of what is the national security is for him alone to make - no explanation can be required. In itself, the sinking of the General Belgrano during the Falklands War was a wise and proper act. But the succeeding prevarication over why and when the decision to sink it was taken shows the ineffectiveness of even the most single-minded determination to have a question aired in Parliament that a government does not want aired.

General Elections

There is one check that cannot be ignored. At least once in every five years, a new House of Commons must be elected. If the Government is incompetent or pays too little regard to public opinion, it will find itself out of office. But, while our representative system does tend to prevent excessive misgovernment, it should not be mistaken for more than it is. Democracy and limited government are usually found together, but are not synonymous. Except in those countries where backwardness and modernity are mingled in the wrong proportions - where none but the stupid can honestly advocate the introduction of democracy - a majority will not trample on its own favourite rights. It can and often will trample on those of a minority.

Here, certainly, voting will not restrain mild misgovernment. If anyone is discontented with a Conservative Government, his only real alternative is to vote for a Labour Party that for all its most recent contortions is still recognisably and dangerously socialist.

Judicial Review

There is one reasonably effective check on Parliament. This is provided by the courts. Of course, they cannot set Acts aside or do other than give effect to the will of Parliament as stated in an Act. But they are often able to interpret the will of Parliament in ways that no government would have expected. This ability has not been diminished, but has even increased during the present century.

The greater part of our modern law is not contained in Acts of Parliament, but is made by Ministers under powers conferred by enabling legislation. This delegation is justified on the grounds - first, that Parliament is troubled enough nowadays by discussing the principles of a new statute, without considering its minute applications; and second, that these applications are more efficiently made by the relevant officials than by the politicians. It is doubtful whether we really need as many as a hundredth part of the new laws made since around 1914. But, granting for the moment that they are needed, there can be no objection in principle to the manner of their making.

For a time, until about the 1950s, an effort was made to exclude the supervision of the courts from this species of executive action. Powers were conferred on Ministers - or in practice on civil servants - to make regulations closely affecting the rights of the subject. Any dispute as to the meaning of these regulations was generally referred to an administrative tribunal run by the very officials who had made and who were applying them. Few accusations were made out of corrupt or incompetent adjudication. Yet a great breach had been opened in the principle, that it is for the courts to decide whether a certain power has been lawfully exercised. The enabling Acts of the day regularly included the words or equivalent - "and the decision of the Minister shall not be called in question in any court of law".

But this dangerous course has been blocked. In their courts, in the House of Lords, and on one notable occasion by pamphlet[9], its final destination was exposed and warned against by the Judges. Enabling Acts were inventively construed to permit appeals from the administrative tribunals to the courts[10]. Finally, with the passing in 1958 and 1971 of the Tribunals and Inquiries Acts, the supervisory power of the courts over the whole administration was reaffirmed. Today, there is an established right of appeal from a tribunal to a special panel of Judges drawn from the Queen's Bench Division of the High Court. One effect of these reforms has been to give to the courts a limited power to set aside bad legislation.

If any attempt is made to enforce a delegated law against him, an aggrieved subject has two means of seeking redress. He can argue before the relevant tribunal that it does not apply in his particular case, and is then able if he thinks fit to make an appeal to the courts. Or he can go straight into court and contest the validity of the law. If its substance or form is held not to have been sanctioned by the enabling Act, or it is held in any other way to be procedurally defective, it may be set aside. Thus, in 1969, the House of Lords set aside the Industrial Training (Hotel and Catering Board) Order 1966, made by the Minister of labour under the powers conferred on him by the Industrial Training Act 1964. The Order was held to have gone beyond what had been allowed by the enabling Act[11].

The growth of judicial review has been one of the most heartening developments in our modern law. It is even possible that, left alone, the courts will eventually bring Parliament under effective control. But they are far from having doen this yet; and it is unlikely that they will be left alone to chip away at the legislative supremacy of Parliament. In any likely contest between the Judges and the politicians, it must never be forgotten that the latter have the final say. They cannot protect their delegated laws. But, if they feel so inclined, they can always re-enact it as primary law, and stop every judicial breach by regular amendment. So far, the only real contest has been over financial legislation. But this alone shows how little real protection the courts can provide against a determined majority in the House of Commons.

Omnipotent Government

The old traditions are not dead. There remains in this country a strong regard for the rule of law. But it is very largely an abstract regard. When it comes to the making of specific desisions, the talk is more of the object immediately in view than of the general consequences. People are often alarmed when they hear that some vital principle of the Constitution is being violated; but almost equally often are quieted by a few emollient words from the promoters of the violation about how nothing essential is being changed, and by a view of what is allegedly to be had in return. At first, 90 or 100 years ago, the violations seemed trifling and the gains enormous. But, as the precedents accumulated, and the old tradition faded, the balance of cost and benefit tended towards equality. Now, the balance has been reversed, and the most arbitrary means are tolerated for the achievement of the most commonplace or superluous ends. The Government nowadays is both allowed and expected to take short cuts.

It may be a British Prime Minister who is calling for the rule of law to be entrenched throughout Europe. But there are many Acts of Parliament proposed by her and her colleagues that would undoubtedly be struck down by any court interpreting a Bill of Rights. They have begun to take away the right to silence. They have reversed the burden of proof in a large class of criminal prosecutions. They have allowed the imposition of penalties without any kind of trial. They have established a censorship in respect of video recordings without precedent since Stuart times. It would be very much in our interest to place some kind of check on the legislative supremacy of Parliament.

The Impossibility of Entrenched Legislation

But the question is, how such a check could be placed. Parliament is sovereign; and the corollary of this is that it cannot abridge its sovereignty, which is absolutely transcendent of any particular Act. An individual may put himself in handcuffs and throw away the key. Parliament cannot bind itself. It can do anything else, but it cannot do that. No matter what bonds it might place on its future action, it could throw them off as if they were no more than cobwebs. It might enact the most perfect Bill of Rights that ever existed. It might provide that no Article of that Bill should be repealed or amended but in a specific manner. It would all be useless. Amendment or repeal would remain possible by ordinary legislation. For the courts will apply any Act of Parliament except one abridging its sovereignty. Where two Acts conflict, they will always give effect to the most recent one; and they will do so regardless of whether it was passed in an irregular manner. They may check the Parliament roll to see whether it has passed both Houses and received the Royal assent. They have no power to enquire beyond that. They will not look into the internal procedures of Parliament. "If an Act of Parliament has been obtained improperly" said Mr Justice Willes, "it is for the legislature to correct it by repealing it; but, so long as it exists as law, the courts are bound to obey it"[12].

Nor could a Bill of Rights be safe even from accidental repeal by an ill-drafted later Act. The courts would follow a rule enjoining them to construe any later Act so far as possible not to conflict with the Bill. Beyond that limited restraint, they would apply the later Act. "The Legislature cannot, according to our constitution" said Lord Justice Maugham, "bind itself as to the form of subsequent legislation, and it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject-matter there can be no implied repeal"[13].

Under better circumstances, a Bill might still be worth enacting. Though legally unenforceable, it might still provide a certain moral restraint on a Parliamentary majority. Its provisions could still be overridden. But the explicitness of the violation of rights involved might limit the number of such overridings. A white line dividing one garden from another may be less satisfactory than a wooden fence. But any boundary mark that shows where lawful enjoyment ends and trespass begins is better than nothing at all. A Conservative government might well have trouble in persuading its supporters to pass a contravening Act. Circumstances, though, are not better. The Conservatives are not the only party of government. There is also a Labour Party strongly opposed to the putting of any limits on Parliamentary sovereignty. It is realised - and correctly - that any such limitation would hold up the transformation of this country into a socialist state. In the 1960s, Alex Lyon, then the Labour Member for York, opposed the introduction of a Bill of Rights on the grounds that the resulting "inflexibility of our machinery for changing the law when obvious social injustice appeared, would make it a gravely retrograde measure for human liberty" (sic!)[14]. More recently, Roy Hattersley, the Labour Deputy Leader, has claimed that "true liberty requires action from the government", and that a Bill would obstruct the achievement of "positive freedom"[15]. One might restrain a Conservative government. It would be laughed at by a Labour government.

It is always open for our present absolutely sovereign Parliament to abolish itself - to adopt a wholly new constitution, in which it would be reconstituted as a less powerful body. Then its Acts could be reviewed by the courts, just as those of Congress are open to review by the Supreme Court of the United States. But to do this would be to break one of those precious threads of continuity that bind the generation now alive to every other that has lived in this country back into the high middle ages. Radical change of this nature is something to be flinched from except where clear and present danger requires it, and where it can be achieved largely by consent. Perhaps this first condition is satisfied. As we write, it appears highly likely that the Labour Party will form the next government. The second, oviously, is not satisfied. Any changes made by the present Government will be seen as Conservative legislation, to be resisted now, and then somehow to be repealed. There is no hope, so far as our domestic politics are concerned, of a good and lasting settlement.

But there is an external hope. Our membership of the European Community cuts through these problems. The debate over entry was long and extremely painful. But that debate is over, and we have entered. The British Government has signed the relevant treaties, and we are all bound by them. There is now in Europe an authority that Parliament cannot remodel or abolish, and of which it must take notice.

COMMUNITY AND BRITISH LAW

The main object of the Community is the promotion of free movement between the member countries, of goods, services and persons. To achieve this object, a central Commission, together with a Parliament and Council of Ministers, is established in Brussels. The various ordinances issued from here take precedence over national law throughout the Community. In the event of any dispute concerning these ordinances or the founding treaties, the European Court of Justice is established in Luxemburg. Comprising 13 Judges - one from each member state plus one other - it has jurisdiction throughout the Community, and its judgments take precedence over those of any national court. We are bound to obey the decisions of these foreign institutions. Sections 2(1) and 2(4) of the European Communities Act 1972 provide that

All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom, shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression "enforceable Community right" and similar expressions shall be read as referring to one to which this subsection applies.

The provision that may be made under subsection (2) above includes, subject to Schedule 2 of this Act, any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed, other than one contained in this Part of this Act, shall be construed and have effect subject to the foregoing provisions of this section; but, except as may be provided by any Act passed after this Act, Schedule 2 shall have effect in connection with the powers conferred by this and the following sections of this Act to make Orders in Council and regulations.

By this first sub-section, all those provisions of Community law which are to be applied in this country are to be given the force of law in our courts. By the second, these provisions are to be given precedence not merely over those Acts of Parliament passed before the coming into force of this Act, but also over those passed after it. Any conflict between these sub-sections and another Act are taken before the courts by the same procedure by which a judicial review is sought of administrative action: application is made to the Queen's Bench Division.

It is untrue that our membership of the Community has ended the ultimate sovereignty of Parliament. The European Communities Act is not entrenched legislation. It may be repealed or amended like any other Act. It must, however, be regarded as politically untouchable. To repeal or amend it, except as required by Community law, would be to leave the Community. It may be that withdrawal combined with a policy of unilateral free trade would be greatly in our interest. But no likely British government will ever believe this. Pending withdrawal or substantial reform, Parliament has chosen to lend some part of its legislative power to the Community[16]. Nothing, then, may have changed so far as the strict legal theory of the Constitution is concerned. Even so, there are now the practical means available for placing restraints on the laws that Parliament can make.

The Supremacy of Community Law

No British court as yet has struck down an Act of Parliament on the grounds that it conflicts with Community law. But the principle, that the courts of each member state have this power, has long since been established in the case law of the European Court of Justice[17]. It can only be a matter of time before it is applied in this country. In one respect, indeed, the way is unambiguously open to its application.

Early in 1989, a group of companies, incorporated under the laws of the United Kingdom but owned or controlled by Spanish interests, began proceedings in the High Court against the Secretary of State for Transport. The companies were the owners or operators of 95 fishing vessels registered in the Register of British Vessels under the Merchant Shipping Act 1884. The system of registration was altered by Part II of the Merchant Shipping Act 1988 and a subsequent regulation made pursuant to the Act. The intention of the new law was to prevent the fishing in British waters by vessels flying the British flag but lacking any real link with the United Kingdom. The companies claimed against the Secretary of State that, by discriminating between one class of Community citizens and another, Part II of the 1988 Act was in breach of Community law, and should therefore be set aside. Since it was expected that some while would pass before final judgment in their application - since the case was to be referred to the European Court for a preliminary ruling on the issues of Community law raised - the companies sought an interlocutory injunction, to suspend Part II of the Act and permit them to continue fishing.

Had the Defendant been any party but the Crown, an injunction would have been granted. The companies had an arguable case. If they succeeded in their claim, but had been forbidden to fish meanwhile, no grant of damages would compensate them for their loss. To let them continue fishing was to preserve the status quo. An injunction was granted by the High Court. On appeal by the Secretary of State, however, the Court of Appeal applied the traditional rule, that no British court could suspend an Act of Parliament. On further appeal, the House of Lords upheld the Appeal Court judgment, adding that at common law no injunction could lie against the Crown. These questions were then submitted to the European Court, for answers to be given independent of the main case already referred to it.

In its judgment, given on the 19th June 1990[18], the European Court held that it was for the national courts to ensure the availability of the legal protections to which people had a right under Community law. It held that any national law or practice that prevented the national courts from ensuring the availability of these legal protections was incompatible with Community law. It held that any national law or practice that prevented the granting of interim relief to ensure the full effectivenes of a judgment to be given on the nature of these legal protections was also incompatible. Where questions of Community law were concerned, it was held that the common law rule preventing the grant of an injunction against the Crown was to be set aside. Applying this decision, the House of Lords granted the injunction, and the Act is now suspended.

The Protection of Freedom under Community Law

The great majority of Community decisions binding on us have been grossly illiberal. In 1989, for example, the Council of Ministers decided to ban the sale within the Community of any cigarette with a tar content of more than 15mg[19]. To come into effect from the end of 1992, this ban will prevent the sale of Senior Service, Capstan, Gold Flake and many other fine and historic brands. Again, the Germans are currently pressing for a Community law against Sunday trading more restrictive than any that has ever existed in English law, and that no British government could by itself hope to soften[20]. These are laws that should not be made nationally, let alone by the central institutions of the Community. they, and hundreds and thousands of others no less objectionable have done much to weaken the regard in which the Community ought to be held by liberals. But there have been a number of judgments handed down from the European Court significantly extending or preserving freedom.

According to section 42 of the Customs Consolidation Act 1876

[t]he goods enumerated and described in the following table of prohibitions and restrictions inward are hereby prohibited to be imported or brought into the United Kingdom, save as hereby excepted.

All that now remain in this table are

indecent or obscene prints, paintings, photographs, books, cards lithographic or other engravings, or any other indecent or obscene articles.

This section gives the Customs and Excise a wider power over what we may read or look at or use than the Police enjoy. The Police are obliged to proceed under the Obscene Publications Act 1959, and must convince a Jury that the article in question has a tendency to "deprave or corrupt". The Customs and Excise need only persuade a Magistrate that it falls into the looser category of what is "indecent or obscene". They are able, moreover, to prosecute anyone who deals with the article after its importation. In consequence, in many questions involving allegedly pornographic material, the authorities gave up seeking enforcement of the 1959 Act in favour of the 1876 Act.

In 1982, a company called Conegate tried to import into this country from West Germany a number of inflatable rubber dolls. These when inflated became life-size replicas of a woman's body, complete with three orifices. They were seized by the Customs and Excise as "indecent or obscene articles". The seizure was upheld in the condemnation proceedings before the Magistrates and on appeal to the Crown Court. But Conegate appealed next to the High Court, claiming that the seizure contravened Articles 30 and 36 of the Treaty of Rome. Article 36 allows the placing of restrictions on imports for the sake or preserving "public morality, public policy or public security". It does not, however, allow restrictions to "constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States". It was claimed that since there was no prohibition of the manufacture and sale of inflatable dolls in the United Kingdom, there ought to be none of their importation from elsewhere in the Community. To allow otherwise was to allow an "arbitrary discrimination or a disguised restriction on trade between Member States". The High Court referred the matter to the European Court, which found for Conegate[21].

In itself an important case, this immediately had a wider effect than on the right to import aids to masturbation. Conegate had the money to mount a long and expensive appeal for its right to do business. But its victory established a principle that automatically governed all similar cases. In 1985, 37 customs officials entered into Gay's the Word, a small bookshop in Bloomsbury that imports literature by and about homosexuals. This entry - codenamed "Operation Tiger" - resulted in the seizure of books by Oscar Wilde, Gore Vidal and Christopher Isherwood among others. 70 of these books were selected for prosecution under the 1876 Act. It was beside the point that many of them had been openly on sale here for generations. All that mattered was that they had been imported and might therefore be eased into the category of the "obscene or indecent". The proprietors of the bookshop if found guilty faced sentences of up to two years in prison. The prosecution was dropped as soon as the Conegate decision was announced.

Our authorities have thus been restricted in their use of the 1876 Act. Formally, they need only liberalise imports from within the Community. But it would be impracticable to apply different tests to imports from different parts of the world. Even if they did, the American suppliers would simply reroute their goods through Holland or Germany. The Customs and Excise have duly been ordered to apply the more liberal test regardless of the exporting country. The European Court has done for the cause of liberty what no recent Parliament has shown the least inclination to do. Given a Bill of Rights to interpret and enforce, we are convinced that it would have both will and ability to do still more.

OBJECTIONS TO A EUROPEAN BILL OF RIGHTS

There are those who doubt this - who are firm liberals yet who also say that the notion of a European Bill of Rights cannot or ought not be realised. They offer two main objections.

The Argument from Redundancy

First it is argued that a Bill of Rights can be drafted and passed into law only when there is no need of safeguards; and that, when needed, they turn out to be useless for stopping a government with strong public support. This is a neat dilemma. The American experience is cited in support. Chris R Tame argues that

[i]t was not the paper checks and balances of the American Constitution that maintained American Freedom. It was the invisible, but actually more real ones manifest in the ideas and actions of millions of Americans. The fact that people would rather go hungry than accept state welfare, that individuals simply would not put up with the sorts of interventionism now accepted as commonplace by contemporary Americans - this is the real power of ideas as social forces. It was the power of the social order, of civic society, and not scraps of paper that limited the American state[22].

As soon as the American mood changed, he continues, not all the paper in the world could restrain the state. The Constitution was amended. What was not amended was interpreted away or turned on its head. The intention of the Founding Fathers was to entrench freedom behind legal defences that would endure for ages. It took less than 80 years for those defences to be sapped and the United States transformed into a "quasi-corporatist" superstate.

Even in those cases where the Constitutional safeguards appeared to work, it was usually only as a temporary break on the transformation. Robert Dahl has studied the 77 instances between 1803 and 1956 where the Supreme Court set aside Congressional laws as unconstitutional. In almost a third of these instances, the aims of the laws set aside were achieved by other means. In a fifth of these instances, the aims were achieved within four years. In only four were more than 20 years needed. "There is" he concludes, "...no case on record where a persistent lawmaking majority has not, sooner or later, achieved its purpose"[23].

But, in spite of its neatness, the dilemma is not entirely real. Governments are always in need of restraint, no matter who is in them or who elects them. It was not solely out of concern for the future that the first ten amendments to the American Constitution were adopted in 1791. It was also feared that the Federal Government would no sooner be settled than it would begin to encroach on the liberties of the people. As as early as 1803 - while many of the Founding Fathers were not merely alive but also politically active and even in control - the Supreme court asserted its inherent right of setting aside repugnant Congressional laws. Moreover, while Dahl's statistics are undeniable, the Court has still in more than two thirds of cases permanently restrained the executive; and in many of these it has enlarged or preserved American freedom. It has prevented prior restraint of the press, and narrowly defined the grounds on which anyone may be brought to account after publication. It has set aside Acts permitting official discrimination against unpopular political and racial groups. It has ensured the observance of due process in criminal prosecutions. Paper safeguards may lose much of their strength when the spirit from which they derived has vanished. But the Supreme Court and the documents that it is there to interpret cannot be described as redundant.

The Argument from Impracticality

Second, it is argued that no really effective Bill of Rights will be adopted by any government that habitually breaks the majority of its articles. We might just as well expect a thief to put himself into prison. The Government and public of the United States accept a Constitution and Bill of Rights that often stand annoyingly in their way. They accept them because they are there and have been there as long as the United States has existed. Offered fresh, unsurrounded by all the associations that now commend them, both might well be rejected. Our own government, whatever may be said at foreign gatherings, will never put itself voluntarily under restraint. As for the other governments of the Community, the nearest document to a Bill of Rights in which they have shown interest has been the dreadful European Charter - satisfying to a body of opinion, certainly, that wants the right to dole money and paid holidays and free television licences for the old, but hardly a new Magna Carta of freedom.

This may be so. But Mrs Thatcher has made a serious and perhaps a long considered proposal. Whatever may be said about other politicians, she can be trusted. When she decides firmly enough that something ought to be done, she will do it, regardless of her short term popularity in the country or the opinions of her colleagues. In the late 1970s, she decided that inflation had to be brought down by a tight control of the money supply. The defeat of inflation was the greatest achievement of her first term - in spite of repeated advice to change course and the apparent collapse of the manufacturing sector. She defeated Galtieri. She defeated Scargill. She carried through the abolition of the metropolitan authorities. She carried through the reform of the rating system. If she decides that Europe - of which we are for the time being a part - is in need of a Bill of Rights, that is what she will set the British Government about pressing for.

While they have so far shown little enthusiasm for the notion, the other governments of the Community may have no objection to it in principle. Without exception, they are already restrained by written constitutions, and most of these contain an enumeration of fundamental rights. The present French Constitution, indeed, has in its preamble a complete recital of the famous Déclaration des Droits de l'Homme et du Citoyen of the 26th August 1789 - a flawed but still impressive statement of liberal ideals[24]. Already used to restraint by their own courts, these governments may not greatly resist further restraint imposed by the European Court.

There is also the matter of our national pride to be considered. A Community Bill of Rights would restrain not only our own Government but also any central institution of the Community. This paper is written on the assumption that the Community will not become a Federation. Even so, there may remain central institutions with considerable legislative and administrative powers. The British public as a whole may not mind what intrusions are made by the British Government, and may therefore regard a domestic Bill of Rights with indifference or irritation. But it does mind what laws are made in Brussels, by foreigners. It will look favourably on any scheme to limit the power that French or German politicians can exercise in this country. It may at the same time - by a natural extension of the argument - be brought to an acceptance of restraints on our own politicians.

THE FORM OF A EUROPEAN BILL OF RIGHTS

All this being said, we now turn to the matter of how a Bill should be drafted - what plan its content and form should follow. Now, there is a good case for not drafting one at all, but instead for adopting one that already exists and is binding to some extent on all the countries of the Community plus nine others.

The European Convention on Human Rights

In 1951, mindful of what had been done by the National Socialists and of what was being done by the Soviet Socialists, the free nations of Europe came together to adopt a Convention on Human Rights. Drafted by the Senior Legal Adviser to the Home Office - Great Britain then for obvious reasons being seen as the one dry rock of liberty this side of the Atlantic - this was intended, unlike the Helsiniki Declaration of 24 years later, to be an effective restraint on the subscribing governments. To ensure its observance, a European Court of Human Rights was established at Strasbourg[25]. This Court has power to try cases brought by one government against another, and - save by Cypriots, Greeks, Turks and the Maltese - by private persons against their government. It has no power to hear cases at first instance, but an aggrieved party must have exhausted all domestic means of redress. If it finds for the Plaintiff, it can award damages and costs. Governments are obliged to comply with adverse judgments by appropriate changes to the law, compliance being supervised by a Committee of Foreign Ministers. The Convention lacks the binding force of the Treaty of Rome. Our Government is under no pressing obligation to give effect to the judgments of its Court. But those judgments have generally been given effect, if usually after some considerable dealy.

The Court has over the past 20 years, since it began hand down adverse judgments against the Government, had a decided liberalising effect on our law. Following judgments of the Court, governments have legislated - to stop the torture of terrorist suspects in Northern Ireland and to legalise homosexual acts there, to allow journalists access to documents read out in open court, to curb lawless surveillance by the Police and secret services, to enlarge the rights of prisoners, parents of children in care and the inmates of mental hospitals.

In most other countries of the Community, there is no need for the Convention to be invoked at Strasbourg, since it has been incorporated into their domestic law, and can be applied at first instance by their own courts. Such consensus as there is here on the need for a Bill of Rights is in favour of incorporating it into British law. In 1979, a Bill passed through the House of Lords to do this, but was rejected by the Commons on Government and Opposition insistence that nothing must restrain the executive. Another attempt was made by Lord Scarman in 1985. His Bill had the support of politicians from all the main parties, and of more than 20 organisations joined together in the Rights Campaign. The Front Benches were still too jealous of their actual or potential freedom even from moral restraint. His Bill failed. However, now that the Prime Minister has been converted to the notion of a European Bill of Rights, and that the most practical means of realising this is through the Community, this obstacle may have been raised. If the Convention were to be incorporated into the Treaty of Rome, it would automatically become part of British law. Also, it would be more effectively entrenched than if it were merely incorporated by Parliament.

The Convention has much to commend it. It exists. It applies already throughout the Community. It has been used to redress grievances. Its incorporation has wide support in this country. It is already incorporated throughout most of the Community. We should not be discontented if it were made the European Magna Carta. It would enlarge and preserve our freedom. It would allow the courts not only to review delegated legislation on procedural grounds, but also to review the enabling Acts themselves in the light of fundamental principles. It would keep Parliament from exceeding its proper authority.

But, for all this, it is defective in its content. It is the product not of a liberal age but of the social democratic and soft authoritarian hegemony of the post War years. It does contain some definite protections. Take, as an example of this, Article 3.

Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court[26].

This does not cover all the rights of an accused person that have evolved in the Anglo-American tradition. There is no security against double jeopardy. There is no right to silence or against the compelling of self-incrimination. Also, it may go too far, in granting a right to free legal assistance. There are times when the resolution of a point of law is of public importance; and then it may be appropriate for the court to assign counsel for that point to be argued. But no one has a greater right under normal circumstances to a free lawyer thant to a freed doctor. If the Article requires a legal aid scheme to be run by the contracting governments, it is defective. Even so, it is on the whole a good Article. It states certain basic principles of procedural justice for the courts to apply in deciding the lawfulness of any prosecution.

Again, take Article 5:

Everyone has the right to liberty and security of person.

This would be better if it used the formula "life, liberty and property" - from the 14th Amendment to the American Constitution - than the vague "security of person". But no other objection can be made from a liberal point of view. There are, however, six limitations on this. It continues:

No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) The lawful arrest or detention of a person of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug-addicts, or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

We say nothing against sections (a) to (d), or section (f). But section (e) is in part objectionable. There is no reason why alcoholics, drug-addicts or vagrants need to distinguished from any other class of persons. If an alcoholic breaks the law, by driving while drunk, or appearing drunk in a public place, or whatever, why not justify action against him by reference to the other sections? Equally, if a drug-addict breaks the law, by possessing an illegal substance, his offence is already covered by the other sections. The same applies with vagrants. There is no need to mention these classes of person separately from any other. Section (e) appears to allow action against members of them not for what they might have done but for what they are. This is undeniably bad.

But our most pointed objection has to do with Article 10:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authorority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

It is very hard from reading this to see exactly what freedom is protected. No government may shut down opposition newspapers just to save itself in the polls. But it may rely on this Article to suppress opinion under virtually any other pretext. The "protection of... morals" might justify the shutting down of most of our national press. The "protection of the reputation or rights of others" obviously justifies the English law of defamation and copyright and so forth. But the clause is so vague that it might also justify the banning of arguments against the right of women to be ordained in the Church of England. It may well justify the recent French law, in which it was made an offence to deny that the German National Socialists murdered six million Jews. This is undoubtedly both a false and offensive denial. But falsehood and the giving of offence do not justify the suppression of opinion.

An Alternative Draft Bill of Rights

In view of these defects, while the Convention is certainly better than nothing at all - and in spite of its defects may even be what we ought finally to advocate - we would offer the following alternative:

A BILL OF RIGHTS FOR THE EUROPEAN COMMUNITY

ARTICLE I

No person shall suffer punishment for breach of any law or other ordinance, whether made by the Community or National authorities, or any person or body exerising power delegated therefrom, that shall not:

i apply to all other persons, without distinction of rank, sex, sexual orientation, religious persuasion or national or ethnic origin;

SAVE THAT this clause shall not prevent the making and enforcement by the National authorities of such laws as shall be required to protect the persons and traditional dignities of their Heads of State;

SAVE ALSO THAT this clause shall not prevent the making and enforcement by the Community or National Authorities of such laws in respect of aliens as shall be required for the defence of the Community or any of its member States or the preservation of public order therein;

ii have been made and clearly published in advance;

iii be enforceable by an independent court of law situated in the Country and district wherein the offence shall have been committed, and in which court the accused

a) shall have the right to a speedy and public trial,

b) shall have previously been informed (in a language known to him or her) of the nature and cause of the accusation,

c) shall be presumed innocent until found guilty,

d) shall be confronted by the witnesses for the prosecution,

e) shall have compulsory process for obtaining witnesses for the defence, and

f) shall have the right of assistance by counsel in all points of law and of fact.

ARTICLE II

No law or other ordinance shall be made, whether by the Community or National authorities, or by any person or body exercising power delegated therefrom, prohibiting the free exercise of religion, or abridging the freedom of speech or of the press, save as shall be required

i for the protection of rights determinable under the laws of torts, of contract, of intellectual property and of confidence;

ii for the preservation of public order in the light of a clear and present danger;

iii for the effective conduct of legal proceedings;

iv for the preservation of official secrecy, it being for the prosecuting authority in any proceedings sanctioned by this Clause to show (where necessary in camera) why the matter in dispute ought not to be revealed, and stating on oath or affirmation the nature and extent of the harm to be expected from revelation.

ARTICLE III

No person shall be subject for the same offence to be twice put in jeopardy of life or liberty or property; nor shall the accused of any offence be compelled to give evidence for the prosecution.

ARTICLE IV

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

ARTICLE V

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

ARTICLE VI

No person, having been arrested, shall be detained for an unreasonable length of time before the laying of charges; nor shall any person, while in custody, be denied access to legal advice, or be subjected to cruel or degrading treatment.

ARTICLE VII

No private property shall be taken for public use except on payment of its open market value, such value to be determined in the event of dispute between the parties by an independent valuer mutually agreed, or, in default of agreement, by a valuer to be appointed by a court of law on application.

ARTICLE VIII

The citizens of each Member State of the Community shall have the right to visit, settle and follow any lawful occupation within the other Member States of the Community; nor shall there be any restrictions on the movement of money within the Community or on the movement of such goods as may lawfully be manufactured or traded within any one Member State of the Community into any of the other Member States of the Community.

ARTICLE IX

All of the rights recognised in this Bill of Rights shall belong to the citizens of each Member State of the Community, together with such aliens as are for any reason within that Member State (subject only to the Second Proviso to Article I,i hereinabove), without distinction of rank, sex, sexual orientation, religious persuasion or national or ethnic origin.

ARTICLE X

All of the rights recognised by the laws of each Member State of the Community shall belong to all of the citizens of that member State and of all such citizens of the other Member States as are for any reason within that Member State, together with all such aliens as are for any reason within that Member State (subject only to the Second Proviso to Article I,i hereinabove), without distinction of rank, sex, sexual orientation, religious persuasion or national or ethnic origin.

ARTICLE XI

Any person whose rights recognised in this Bill of Rights shall have been violated shall in all cases have an effective remedy on application to the courts of the Member States or to the European Court of Justice.

A BRIEF COMMENTARY

Article One

This Article attempts a fuller statement of the rule of law than was given earlier in this paper. While much of it needs no commentary, there are parts of it that may be open to question

Non-Discrimination

Clause i looks like part of a recruitment advertisement for one of the more disreputable local authorities. But it seeks to impose no obligation on any employer to be more tolerant than he wishes. It gives no one the right to a job or or house or university place or any benefit. It seeks simply to close an obvious loophole in the rule of law.

For F.A. Hayek, freedom and the rule of law are very nearly synonymous concepts. He defines freedom as "independence of the arbitrary will of another"[27]. He contends that "when we obey laws, in the sense of general abstract rules laid down irrespective of their application to us, we are not subject to another man's will and are therefore free"[28]. He adds that, apart from this requirement - that every law should be universal and intended for application to an unknown number of future cases - there is no need for a Bill of Rights[29].

Hayek is right in so far as the rule of law is a necessary condition for freedom to exist for any length of time. But when he appears to regard it as a sufficient condition, he overstates his argument. Where there is no rule of law, there is generally no freedom. It is untrue that freedom is always a consequence of the rule of law. If it were enacted that every adult person on reaching the age of 65 should be put immediately to death, it would be hard to find a less liberal law. But, so long as it applied equally to all within the jurisdiction, and were made and enforced according to the correct procedure, it would be fully in conformity with the rule of law. It is, of course, extremely unlikely that any legislature would make such a law, knowing that its provisions would apply to the individual legislators as well as to the ordinary population. However, there are general laws that would bind those making them, but only hurt others. Hayek does accept this objection, but gives it less attention than it deserves. He says that

[i]t is not to be denied that even general, abstract rules, equally applicable to all, may possibly constitute severe restrictions on liberty. But when we reflect on it, we see how very unlikely this is. The chief safeguard is that the rules must apply to those who lay them down and to those who apply them - that is, to the goverment as well as the governed - and that nobody has the power to grant exceptions. If all that is prohibited and enjoined is prohibited and enjoined for all without exception (unless such exception follows from another general rule) and if even authority has no special powers except that of enforcing the law, little that anybody may reasonably wish to do is likely to be prohibited. It is possible that a fanatical religious group will impose upon the rest restrictions which its members will be pleased to observe but which will be obstacles for others in the pursuit of important aims.

But if it is true that religion has often provided the pretext for the establishing of rules felt to be extremely oppressive and that religious liberty is therefore regarded as very important for freedom, it is also significant that religious beliefs seem to be almost the only ground on which general rules seriously restrictive of liberty have even been universally enforced. But how comparatively innocuous, even if irksome, are most such restrictions imposed on literally everybody, as for instance the Scottish Sabbath, compared with those that are likely to be imposed only on some![30].

Now, this is not so. In the first place, religion is not the only ground on which general restrictions affecting only a minority have been placed. In the second, religious restrictions in themselves are often productive of more pain and disorder than the fairly trifling matter of sabbatarianism.

About a fifth of the Bulgarian population is Moslem. More than three quarters of Albanians are Moslems. Both of these countries will sooner or later be admitted to the Community. In each of them, the dominant religion has been and largely remains subject to persecution from an atheist state. Once the persecutions are lifted, and the majority has a say in government, there is likely to be an assertion of religious values. Public worship will again be legal. Religious property will be restored and buildings reconsecrated. There is nothing wrong in this. But the assertion may easily go further. The persecution of all religion may be replaced by the persecution of minority religions. A Bill of Rights containing only what Hayek recommends would not prevent an extremely bitter persecution in these countries.

Imagine a Bulgarian law that read as follows:

Any child or person in any public place and on any occasion shall appear with covered head commits an offence, and on conviction therefor shall be liable to a term of imprisonment not exceeding three years or unlimited fine or both.

In any circumstance, this would be a monstrous law. It requires what no government has any business to require. It imposes an extremely high penalty for non-compliance. But it could easily be obeyed by Christians and atheists, though they might find compliance a nuisance in cold or very sunny weather. But, for Moslem women, as we all by now should know, it would mean a choice between apostasy and house imprisonment. It would prevent the education of girls from devout households. It would, while staying formally within Hayek's category of permissible legislation, impose a religious discrimination leading insensibly to a lowering of social and economic status.

Many demands of the gay movement are variously to be deplored or laughed at. Homosexuals are not to have laws against making fun of them. They are not to be given privileges under housing or employment law. But some of their demands are perfectly just. They labour at present under a vast mass of discriminatory legislation. Except in Denmark, they cannot marry. In England, Scotland and Ireland, even private contracts amounting to marriage are unenforceable. Except in Denmark and Holland, they cannot inherit in the event of a partner's intestacy. Their disabilities under the civil law will be treated in Article X. For the moment, we deal only with the disabilities of male homosexuals - lesbian acts never having been criminal in any of the member states - under the criminal law. They cannot make love with the same freedom as heterosexuals. In the Irish Republic, they are absolutely forbidden by law to make love. In this country, as in Germany and Luxemburg, their age of consent is different[31]. Each of these burdens is drafted so as to apply to the whole population. Julian Clary cannot sleep with a man in an English hotel bedroom. Neither can the Editor of The Sun. There is no formal discrimination[32].

For these reasons, it needs to be made explicit that when a law is required to apply to everyone without distinction, the way is not left open to informal persecution of an unpopular minority. But this, it must be emphasised, is all that is intended. There are inevitably laws that can by a little sophistry be claimed to discriminate against a certain group. The criminal statistics might, for example, show that Catholics are more likely to declare fraudulent bankruptcies than are Protestants. But no reasonable person would infer from this that the British Insolvency Act 1986 is the modern successor to the Acts of Supremacy and Uniformity. The accidental tendency of a law might be to discriminate. But anyone who would have it set aside must show that its purpose is to discriminate.

Protection of Heads of State

It is often said that an age as enlightened as our own has no need of monarchy or monarchical privilege. What is it, people ask, about "a shot of murky water" that singles anyone out for power and veneration? The answer to this is simple. There is nothing that cannot be made to look absurd or worthless by the right choice of descriptive language. We can describe sexual intercourse as the rubbing together of two small areas of flesh. We can describe the gold standard as the digging of yellow metal out of the ground only to bury it again in a bank vault. We can describe a Bach Partita as a collection of sounds made by a man dragging a hundred horse hairs over half a dozen lengths of animal gut. These can all be very witty sayings. But they have no other use. The value of monarchy lies not in how it might appear to some droll visitor from Mars, but in how it appears to those living under it.

Ours is not a particularly enlightened age. It is certainly not an age of republicanism. Constitutions and country names may state otherwise, but the greater part of mankind is subject to what the Greeks called monarchia, or the rule of one man. Saddam Hussain, Colonel Gaddafi, Michael Gorbachev, Kim Il Sung, Robert Mugabe - each is called a President. Each has more in common with a Roman Emperor of the third century than with an American President. Each may also be a tyrant. But tyranny is only the corruption of monarchy, not its antithesis. True republicanism is very rarely to be found. Where it is to be found, the Head of State is surrounded by strict legal and conventional safeguards. Only in the United States have these safeguards been effective for any significant length of time. Everywhere else, they have been periodically broken through.

The British monarchy is one of the strangest institutions known to us. It is one of the strangest and most beneficial. It could never have been consciously designed. Once lost, it could never be recreated. Because of it, we have during the past three centuries enjoyed both representative government and political stability. On the one hand, the Queen can in normal circumstances do nothing but what her Ministers advise. On the other, she fills a position that is closed to any rival. She is head of state not by right of popular election or military force, but by prescription. In this country, a question is firmly settled that in most others remains actually or potentially open.

The monarchy has not prevented us from losing many of our freedoms. But it has saved us from what is equally bad - the ultimate ambition of the corrupt general or politician. The Queen is both privileged and disabled in law. She pays no taxes. She cannot in her personal capacity be taken before the courts. To kill her is more than murder. To attempt her life is more than conspiracy to murder. She cannot change her religion. Her choice of marriage partner is circumscribed by law and convention. But, in so far as they define and protect her title, the continued existence of these privileges and disabilities is in our interest. They must be exempted from the general requirement of equality before the law.

Much the same is to be said concerning the monarchies of Spain, Holland, and Belgium, and the Grand Duke of Luxemburg. To a much lesser extent, the same may be said concerning the various Presidencies of the other countries of the Community.

The Separate Legal Status of Aliens

So far as possible, aliens residing or travelling within the Community are to enjoy the same protection from this Bill of Rights as the citizens of each member state. But it will inevitably be necessary from time to time to impose restrictions on the citizens of certain foreign states which are at war with some or all of the member states of the Community or with which relations are for some other reason strained. It is to be hoped that these occasions will be very few. But they must be anticipated.

The Ban on Retrospective Legislation

Retrospective legislation has been called a sure sign of tyranny. It robs the law of certainty. It requires the prudent not only to find out what the law is and to obey it, but to do whatever the government seems to want on the assumption that it will eventually be expressed in a law. It is both shameful and alarming that the British Government has made retrospective laws.

The Firearms (Amendment) Act 1988 was passed to restrict the ownership of pump-action shotguns and semi-automatic rifles. Under section 21, the Home Secretary was empowered to make a scheme of compensation for those surrendering their newly prohibited weapons. Under the scheme eventually made, there was to be a flat payment of of £150 per gun, or a payment of 50 per cent of its average retail price during the summer of 1987. This was an act of confiscation, and would as such be forbidden under Article VII of this Bill. But Sections 21 (a) and (b) provide for compensation only to those owners who lawfully purchased their guns before the 23rd of Septemebr 1987. The Act became law in the Summer of 1988. Section 21 was brought into force on the 30th of April 1989. No one who bought one of the restricted firearms during the preceding year and a half was breaking the law. Yet he was punished as if he had. He was fined by a denial of compensation for not having consulted the mere wishes of the Government before doing what was at the time perfectly lawful.

Article I, 9:3 of the American Constitution expressly forbids the making of laws ex post facto. Our own unwritten Constitution evidently does not forbid them. This Clause would supply the deficiency.

The Requirement of Due Process of Law

The wording of Article I,iii is taken mostly from the Fifth and Sixth Amendments to the American Constitution and partly from the European Convention. It should be neither controversial not in need of any elucidation.

Article II

The right of free speech may well in particular instances seem both vexatious and dangerous. It is, even so, the most important of all our liberties. Take this one away, or seriously abridge it, and every one of our others is immediately threatened. The wording of this Article follows the First Amendement to the American Constitution, which reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This is far better than Article 10 of the European Convention. It states that the right shall not be abridged, not that it may in an indefinitely large number of circumstances. But where the Convention goes too far in one direction, this goes too far in the other. There can be no absolute right to freedom of speech. Congress and the Supreme Court have always accepted this. The First Amendment does not prevent the bringing of actions for defamation, or breach of copyright, for reasons of essential state security, or any number of other reasons. It has always been read as a restraint on the censorship of of comment on matters of legitimate public concern. Therefore, while the wording of our second Article broadly follows that of the American First Amendment, the exceptions are clearly stated.

The Law of Torts

Libel

It has been said that a person's reputation is nothing more than an idea existing in the minds of others, and that no one can legitimately expect to have a property right in the contents of another's mind. It is, however, true that people do consider themselves to have such a right - and that, if the law denied them any redress, they might be inclined to seek it themselves, in duels or in other acts of violence. In addition, the right is capable of clear statement and application: "[t]he law recognises in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit"[33]. Injurious falsehood

Here, it is required that actual financial damage must be proved, as opposed to the less tangible loss of reputation involved in libel. If A were to publish a claim that Captain Flint's last treasure were buried under B's back lawn, and a mob came and turned B's garden into something resembling a shell crater, he would have an obvious cause of action against A.

Breach of Contract

If someone contracts not to publish a book until after a certain time, or agrees to any other limitation, it would be monstrous if he were able to avoid performance by invoking an abstract right to freedom of speech. Accordingly, there is no such protection under English or any European law; and there is none recognised in this Article.

Copyright

Unlike throughout most past ages, it is currently believed that certain arrangements of words or sounds or other common elements constitute distinct and potentially valuable works of the mind which deserve the same protection as more tangible forms of property. No one has the right to use what he has not lawfully acquired. He cannot profit from the sale of another's stolen property. He cannot, without permission, publish what he has not himself written or obtained the right to publish.

The Law of Confidence

"The law has long recognised that an obligation of confidence can arise out of particular relationships. Examples are the relationship of doctor and patient, priest and penitent, solicitor and client, banker and customer. The obligation may be imposed by an express or implied term in a contract but it may also exist independently of any contract on the basis of an independent equitable principle of confidence"[34]. This obligation clearly binds the person to whom information has been imparted. It also binds any third person to whom it might be passed. Anyone who publishes such information, unless it can be shown already to exist in the public domain, or that it is of a nature so iniquitious that its disclosure becomes a duty, is rightly liable to civil remedies.

Public Order

We turn now to the laws of sedition, blasphemy, obscenity, incitement to racial hatred, and all those others that are currently justified at least in part on the grounds of keeping the public order. None of these is a matter affecting any specific individual. In each case, a prosecution must be undertaken either by the state or by a private person who needs prove no more injury to himself than is alleged against the public as a whole. The argument, that certain kinds of writing have a tendency to deprave or corrupt the reader, may or may not be correct. What we deny is the normal conclusion to this argument, that the circulation of such writings should be forbidden. People are adults or they are children. If they are the former, they are to be treated as rational beings, capable of interposing some process of thought between suggestion of evil and acceptance of it, and then between acceptance of evil and action in obedience to its promptings. Otherwise, it they cannot be trusted with temptation, it seems rather strange to trust them with the vote. If they cannot govern themselves, they most certainly ought not have the right to govern everyone else.

There are, however, circumstances in which the publication of certain views - or perhaps their publication in certain forms - might provoke a breach of the peace. It seems at present very likely, for instance, that the appearance in a Bradford or Parisian newspaper of a cartoon showing the Prophet Mahommed, or the late Ruholla Khomeini, fornicating with a pig would lead to wild rioting. In the case of this rather extreme instance, it can be argued that the publisher of the cartoon ought to be answerable at law. True, the existence of a law before which he might be answerable would encourage many of the commotions which it was designed to prevent: if throwing petrol bombs really could produce the withdrawal of offending material, it would be only reasonable for some people to throw them. But public order must be kept. Laws must be made and enforced against disturbances. It would be foolish to prevent such laws or rob them of their effectiveness. The only proper limitation on the various governments of the Community ought to be on the grounds of proximity of danger. It should be for the courts to decide whether any particular statute or action was required "in the light of a clear and present danger".

Contempt of Court

If trial by jury is to be retained or introduced in any part of the Community, it follows that the press should be restrained from seeking to influence potential jurors with sensational, and perhaps incorrect, accounts of the evidence to be offered in pending criminal proceedings. To this extent, the law of contempt of court is justified. It is needed to secure justice for individuals accused of having broken the law. But most civil proceedings within the Community either are not or never have been tried before a jury. Even in England and the Irish Republic, interlocutory proceedings and appeals always have been decided by judges. That a judge cannot disregard irrelevant or biased press comment in his deciding an issue ought to be incredible. The present English law, contained in the Contempt of Court Act 1981 appears to have gone too far. It allows the deferral, or even outright prevention, of discussions that often involve matters of great and pressing importance.

Oficial Secrecy

While the state exists, it will continue to have secrets in need of protection. At present, there are many things that ought not to be made public. For example, a newspaper editor might take it into his mind to discover and publish the names and addresses of informers against the various Northern Irish terrorist groups. The consequences of this are so easily predictable, that to do it would be almost to commit murder. The civil damages payable in any action for breach of confidence would be grossly inappropriate. For this reason, then, some law of official secrecy has a proper function.

But this is not to endorse any law so wide as the British Official Secrets Act 1911, now repealed, or its present successor, which remains largely a means of protecting governments from public ridicule or execration. It must in each prosecution be made clear to the court what must be protected and why. It must be for the courts to decide what ought to remain secret, not a government minister.

Article III

The wording of Article III is derived from the Fifth Amendment to the American Constitution, and supplies a deficiency already noted in the wording of the European Convention. Its purpose is to confer a procedural right not generally recognised in most Community countries, and to preserve one currently under attack in our own country.

Under section 1 of the Criminal Justice Act 1987, the Serious Fraud Office was set up. Section 2 allows this body to require a person under investigation for serious or complex fraud, or any person who is reasonably thought to have information relevant to such a fraud, to attend before it and answer questions or furnish other information. Anyone who fails to comply commits an offence. Though statements made under compulsion can be used only to contradict other statements made later by the defence in court, documents surrendered can be used by the prosecution for such purposes as it may think fit. The writers of the standard commentary on this Act are driven to say: "Thus significant inroads are made on the privilege against self-incrimination and the maxim that 'no one shall be required to be his own betrayer'"[35].

Article IV

The wording of Article IV is copied directly from the Eighth Amendment to the American Constitution, which is copied in turn from our own Bill of Rights of 1689. Its function is to prevent any clever manipulation of the law into a weapon of persecution. Just such a manipulation was made by the English Judges following the accession of James II in 1685. While still Duke of York, James had begun civil proceedings for defamatory words against the unspeakable Titus Oates; and the Jury had awarded the fabulous sum of ’100,000 - in our own debased currency about ’8 million. Unable to pay, he was committed to prison for debt. As soon as the new reign began, he was unlawfully put in chains. He was then brought to trial for several perjuries, or which he was notoriously guilty. He was convicted. Now, while he had perjured several lives away, his crime in English law ranked only as a misdemeanour. He was liable to be burned on the hand and fined. But he was sentenced to be stripped of his clerical habit, to be pilloried, and to be whipped from Aldgate to Newgate then back again. If he survived this, he was to be imprisoned for life and pilloried five times every year in various places about London.

It was to prevent abuses of this kind that Parliament in the next reign first enacted the Clause. The American colonists retained it. We do likewise.

Article V

Except for the dropping of a few capital letters, the wording of Article V is copied directly from the Fourth Amendment to the American Constitution. It is a codification of the English common law as stated in the various cases connected with John Wilkes. In the most famous of these, Entick, a printer, had sued two officials for having broken into his house and seized his papers. They pleaded in defence a warrant signed by one of the Secretaries of State. The warrant was extremely vague and appeared to sanction what is called a "fishing expedition": The Government wanted to prosecute Entick, but first had to find enough evidence to support a prosecution. Passing judgment, Lord Chief Justice Camden of the Common Pleas declared the warrant unlawful, in that is was permitted neither by the common law nor by statute[36]. For the next 170 years, general searches and seizures were to remain illegal in this country.

But, since their first staturory authorisation, in the Public Order Act 1936, they have become increasingly common and accepted. The current law is stated in section 19 of the Police and Criminal Evidence Act 1984:

(1) The Powers conferred by subsections (2), (3) and (4) below are exercisable by a Constable who is on any premises.

(2) The Constable may seize anything which is on the premises if he has reasonable grounds for believing -

(a) that it has been obtained in consequence of of the commission of an offence; and
(b) that it is necessary to seize it in order to prevent it being concealed, lost, damaged, altered or destroyed....

(3) The Constable may seize anything which is on the premises if he has reasonable grounds for believing -

(a) that it is evidence in relation to an offence which he is investigating, or any other offence; and
(b) that it is necessary to seize it in order to prevent it being concealed, lost, damaged, altered or destroyed....

(5) the powers conferred by this section are in addition to any powers otherwise conferred.

The whole section justifies seizure without warrant. The italicised clause justifies the seizure of material not specified in any warrant even if one is taken out. French and German law is no more restrictive in this sense than our own. If people really are to be secure in their persons and properties, they must have a proper written safeguard such as our Article V.

Article VI

The only member state of the Community particularly lax in respect of Article VI is Greece. This, of course, is reason enough for its inclusion. It will also be needed for the Eastern countries, which, despite the best will in the world, will have police forces trained under the Old Regime. People are not to be held uncharged in custody without proper cause. Nor are they to be tortured. Nothing further ought to be said on this matter. A European Bill of Rights is not the place for elaborating a code of procedure. Each legal system in the Community has its own notion of what is an unreasonable length of detention. It will be for the European Court to decide whether each of these notions is generally acceptable.

Article VII

It is to be regretted that every member state of the Community has a law of compulsory purchase; and that none is likely in the foreseeable future to put an end to it. But this must be accepted. Rather than try abolishing a power that will be fiercely defended, it seems much better to regulate it.

Article VIII

The Community is to be a free trade area. Already, the Continental member states are removing all the fences and other controls at their mutual borders. The French and Italian border is now marked by nothing more physically impeding than the brass meridian strip at Greenwich. The clear intention is the removal of all other impediments. Article VIII confirms this, condensing the relevant Articles of the Treaty of Rome. It is to be noticed here that whatever may lawfully be made or sold in any one of the member states of the Community must be accepted into all the other member states. The purpose of this is to standardise the laws of the Community in line with those of the most liberal member state.

Articles IX and X

Articles IX and X simply close any loophole not closed by Article I,i. Every person in the Community is so far as possible to be equal before the law.

Article XI

The purpose of Article XI is make it explicit that the Community law of which this Bill of Rights is proposed to be a part shall apply throughout every member state of the Community. As has already been explained, it does apply in this country, and the means are in place by which it may be invoked. An aggrieved person applies to the Queen's Bench Division of the High Court of Justice for a judicial review of executive action, citing the relevant Community law. At present, except where injunctions against the Crown are concerned, the matter is referred to the European Court in Luxemburg for a preliminary ruling. With each ruling, however, the need for future referrals diminishes; and the day will come when the whole body of Community law is routinely applied in our own courts. But it would help if the need for any future referrals - since they are immensely expensive - could be eliminated. It would help also if the new member states to be admitted from the East were to have the obligation clearly imposed on them to make every remedy contained in Community law immediately available to their subjects.

CONCLUSION

It should not be supposed that the adoption of this draft Bill of Rights or any other would produce an absolute equality of rights throughout the Community. It would not. The two kinds of legal system established in the member states differ not only in their incidentals but also in some of their essentials. In England, Scotland and the two Irelands, the common law is established. Throughout the rest of the Community, the Napoleonic Code is either established or followed more or less closely. The common law permits the granting of injunctions and civil imprisonment. Continental law does not. Continental law makes an absolute distinction between public and private law. The common law, for all its recent development of judicial review, remains a unified system that makes a dwindling number of distinctions between private persons and the public authorities. One practical effect of this difference is that while in the common law countries, every official must act within the law under pain of personal liability, in the code countries officials may do largely as they please, subject only to an obligation on the state to make compensation. It has already been said that the notion of what is reasonable will differ among the various member states. It is highly likely - if to a small extent that now - that what is legal in Germany will remain illegal in Great Britain and vice versa. The only means by which uniformity could be ensured would be to destroy each national system of law and impose a common model in its place. This neither will nor ought to be done.

In spite of this, the opportunity is presently before us to make a new Europe, of unrivalled freedom and prosperity, in which the old hatreds will have truly vanished, in which the unique potential of our common civilisation will be fully realised. We have only to follow where Margaret Thatcher has led.

NOTES

1. There are in fact three Communities - the European Coal and Steel Community, the European Atomic Energy Community, and the European Economic Community. These three were amalgamated in 1967, since when the official title has been the European Communities. The title European Community, or its contraction by dropping the adjective, has no formal basis, and was first used in this country by the federalists. In spite of this, its use by the Prime Minister may be taken as having legitimised it.

2. From her speech of the 5th August 1990, given at Aspen in Colorado, as reported in The Daily Telegraph, 6th August 1990.

3. Ibid.

4. On this point, see David Hume:

The happiness and prosperity of mankind.... raised by the social virtue of justice and its subdivisions, may be compared to the building of a vault, where each individual stone would, of itself, fall to the ground; nor is the whole fabric supported but by the mutual assistance and combination of its corresponding parts.

All the laws of nature, which regulate property, as well as all civil laws, are general, and regard alone some special circumstance of the case, without taking into account the characters, situations and connexions of the person concerned, or any particular consequences which may result from the determination of these laws in any particular case which offers. They deprive, without scruple, a benificent man of all his possessions, if acquired by mistake, without a good title; in order to bestow them on a selfish miser, who has already heaped up immense stores of superfluous riches. Public utility requires that property should be regulated by general inflexible rules; and though such rules are adopted as best serve the same end of public utility, it is impossible for them to prevent all particular hardships, or make beneficial consequences result from every individual case. It is sufficient, if the whole plan or scheme be necessary for the support of civil society, and if the balance of good, in the main, do thereby preponderate much above that of evil

(Appendix III to An Enquiry Concerning the Principles of Morals (1749), Oxford University Press, 1957, p. 305).

5. We do actually posess a Bill of Rights. This was passed in 1689, following the Glorious Revolution. But, unlike the first ten amendments to the American Constitution, it is neither entrenched nor general. Instead, it enumerates and condemns the illegal acts of James II. It is of greater historical than legal importance.

6. "The law of England is a law of liberty, and consistently with liberty we have not what is called an imprimatur; there is no such preliminary licence necessary; but if a man publish a paper, he is exposed to the legal consequences, as he is in every other act" (per Lord Ellenborough inR v Cobbett (1804) 29 State Trials 1).

This is no longer entirely true. The Law of Libel Amendment Act 1888 and the Defamation Act 1952 both extended the protection of privilege to various classes of report published in a newspaper or broadcast. The 1888 Act also frees the press from prosecution for any blasphemous or seditious libel except with the leave of a High Court Judge given in chambers. Thus The Times has a greater freedom to comment on public events and persons than a poster writer. But it remains the case that our law has no equivalent of the special status accorded to the press even in most European countries.

7. A.V. Dicey, The Law of the Constitution (1885), Macmillan, London, 8th edn 1915, p 38. Again, this is not entirely true. In 1610, Lord Chief Justice Coke set aside an Act of Parliament on the grounds that it breached the common law principle that no man should be judge in his own cause. "In many cases" he declared, "the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void" (Dr Bonham's case, in Coke's Reports, volume 8). In 1702, Lord Chief Justice Holt set aside another Act - though the report of this is too brief for his reasoning to be studied with any surety. All the recent cases have confirmed Dicey's opinion. But it may one day be possible, given an extreme instance of misgovernment, for the old common law supervisory power to be revived.

8. The new law has not prevented what looks like a very similar abuse in Rochdale.

9. Lord Hewart of Bury (Lord Chief Justice of England), The New Despotism, Ernest Benn Limited, London, 1929.

10. See, for example, Anisminic Ltd v Foreign Compensation Commission [1969], All England Reports 208. The Plaintiff applied to the Defendant to be compensated for the loss of its property in Egypt during the Suez crisis. Its application was rejected. The Foreign Compensation Act 1950 had sought to block appeals from the Commission by declaring that its decisions should "not be called into question in any court of law". An appeal was made even so. Finding that the Commission had in this case exceeded its statutory powers, the House of Lords held that the decision was void on the grounds that it was not really a decision. By clever construction, a principal clause of the Act was disregarded.

11. Hotel and Catering Industry Training Board v Automobile Proprietary Ltd [1969], 2 All England Reports, 582.

12. Lee v Bude & Torrington Railway Co (1871) 6 Common Pleas Cases, 582. This doctrine was reaffirmed by the House of Lords in 1974, in the case of Pickin v British Railways Board, ([1974] Appeal Cases).

13. Ellen Street Estates Ltd v Minister of Health [1934] 1 King's Bench Reports, 753. 14. Quoted, Michael Zander, Bill of Rights?, Sweet and Maxwell, London, 1985, p. 4. Chris R. Tame also quotes this in his powerful essay, "The Case Against a Bill of Rights", in South African Freedom Review, Summer 1988, pp 19-33. We will try to consider his main arguments later in this paper.

15. The Guardian, 12th December, 1988, cited Tame, op. cit., p. 28.

16. This, at least, is the view taken by Mr Justice Hoffmann in the cases of Stoke-on-Trent City Council v B & Q plc and Norwich City Council v B & Q plc (Chancery Division), reported in The Daily Telegraph, 18th July, 1990. See also per Lord Denning MR in Macarthys Ltd v Smith: "if the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty [of Rome] or any provision in it or intentionally of acting inconsistently with it and says so in express terms then I should have thought that it would be the duty of our courts to follow the statute of our Parliament" ([1979] 3 All England Reports, 325).

17. See, for example, Costa v ENEL [1964] European Community Reports. The Italian government had nationalised the production and distribution of electricity and tranferred the assets of the old private companies to a a state monopoly. Costa, a shareholder in one of the old companies, sued in Luxemburg, claiming that, although passed subsequently, the nationalisation breached the Treaty of Rome. The Court agreed. Community law was held to prevail over subsequent incompatible national law.

18. Regina v Secretary of State for Transport Ex Parte Factortame Ltd and others, Case C-213/89, reported in The Times, 20th June 1990.

19. The Daily Telegraph, 14th November 1989.

20. The Daily Telegraph, 29th September 1990.

21. Conegate v Commissioners of Customs and Excise (No 121/85) Queen's Bench (1987) 254.

22. Tame, op. cit., p. 21.

23. Robert A. Dahl, "Decision Making in a Democracy: the Supreme Court as a National Policymaker", in B. Vanderhoef (ed.), The Fiber of Democracy, Harper and Row, San Francisco, 1970, p. 332 - quoted Tame, op. cit., p. 24.

24. This is not entrenched against express repeal. But it does contain a number of "general principles" that govern the interpretation of laws. It is also an object of almost general veneration.

25. This Court is not to be confused with the European Court of Justice at Luxemburg. The two are quite separate. The former is part of the Council of Europe, the latter of the European Community. That the two abbreviate to European Court is an unfortunate coincidence. 26. The whole text of the Convention is printed in Ian Brownlie (ed.), Basic Documents of International Law, Oxford University Press, 1983, pp 320-348.

27. F.A. Hayek, The Constitution of Liberty, Routledge and Kegan Paul, London, 1960, p. 12.

28. Ibid, p. 153.

29. See Volume 3 of his Law, Legislation and Liberty, Routledge and Kegan Paul, London, 1982, p. 109.

30. Hayek (1960), pp 154-5.

31. Ages of Homosexual Consent throughout the Community

          Country     Hetero-  Homo-   Year of
                      sexual   sexual  legalisation

           Belgium    16         16             1792
           Denmark    15         15             1930
           Germany    14         18             1969*
           Greece     15         15             na
           Spain      12         12             1822
           France     15         15             1791
           Ireland    16         --             ----
           Italy      14         14             1889
           Luxemburg  14         18             1792
           Holland    16         16             1811
           Portugal   16         16             1852
           UK         16         21             1967

(Source: Peter Tatchell, Out in Europe, A Guide to Lesbian and Gay Rights in 30 European Countries, Channel Four Books, 1990)

* In East Germany, the age of consent was equalised at 14 in 1968. We do not currently know whether this law has been retained or whether Federal law now obtains throughout the new States.

32. Hayek himself gives a further example: "A good illustration from another field of how a non- discrimination rule can be evaded by provisions formulated in general terms... is the German customs tariff of 1902..., which, to avoid a most-favoured-nations obligation, provided a special rate of duty for 'brown or dappled cows reared at a level of at least 300 metres above the sea and passing at least one month in every summer at a height of at least 800 metres'" (1960, note 20 in Chapter Fourteen, given p. 489.

33. Per Mr Justice Cave J Scott v Sampson (1882) 8 Queen's Bench Division 503; quoted in Gatley on Libel and Slander (1981 ed.), London, Sweet & Maxwell, para. 1.

34. Per headnote in A.G. v Guardian Newspapers (No. 2) (HL(E)) 3 Weekly Law Reports [1988] 777 (the "Spycatcher" judgment).

35. Emmins and Scanlan, The Criminal Justice Act 1988, Sweet and Maxwell, London, 1988, p. 6.

36. Entick v Carrington, (1765) 19 State Trials 1030.

17,913 words.