UK Liberty

Kick-starting a national debate on a Bill of Rights and Responsibilities

Minister of State Michael Wills MP:

… Where power is located and how it’s distributed, and how it can be exercised, go to the heart of the most elemental human aspiration – for each of us, as far as is practicable and consistent with the ability of others to do the same, to live our lives fulfilled, peacefully, free from arbitrary interference and control by others.

This always matters – but when times are good it’s sometimes easy to forget the importance of the equitable distribution of power. When most are prospering, concerns about whether people have adequate control over their lives may step into the background. But when times are tougher, and people feel more vulnerable and threatened, then a sense that they do not have adequate control over their own life, and that others are controlling it for them, then that creates risks for the peace and stability and cohesion of society. We saw this over and over again in the nineteenth and twentieth centuries.

We should never be complacent about our constitutional arrangements and whether they adequately deliver the fairest possible distribution of power in our society.

That’s why we launched the Governance of Britain programme, as the next stage of the government’s constitutional reforms. It’s driven by two assumptions. First: in healthy societies, power is never concentrated in the hands of a few but diffused as widely as possible – and flows freely. Society is diverse and complex – so too must be the distribution of power.

And second that the struggle can never cease – power always clusters, chemically, round the powerful. And it requires rigorous and vigorous activity to reverse this law of nature.

This is never easy – it raises difficult questions about how best to strike the balance between the individual and the community,

Well that’s true.

John Stuart Mill warned us against the “tyranny of the majority“, and Alexis de Toqueville wrote about the “unlimited power of majority, and its consequences“.

Lord Salisbury said, “By a free country, I mean a country where people are allowed, so long as they do not hurt their neighbours, to do as they like. I do not mean a country where six men may make five men do exactly as they like.”

I’m sure such discussions will continue for many years yet.

how best to secure an appropriate relationship between the rule of law and parliamentary democracy,

Parliamentary democracy should be subordinate to the rule of law – except that Parliament may not bind its successors.

how far should executive power be fettered by the courts and in what ways,

It seems to me the executive should be slapped down when it breaks the law, and the agents of the state involved should be personally penalised.

Let’s take Raissi, for example. He was arrested (at 3am, with his wife and brother), accused of being a terrorist involved in 9/11, held for seven days, ‘de-arrested’, immediately re-arrested, held in Belmarsh for four and a half months, released but prevented from leaving the country, undoubtedly interrogated a number of times, his house probably turned upside down, his career ruined, and refused compensation, all based on unfounded allegations, lack of reasonable cause, non-disclosure of evidence, and abuse of process.

Hopefully the Home Secretary will back down, and compensate him, but that is taxpayer’s money, not the Home Secretary’s, nor that of the people responsible for the unfounded allegations, lack of reasonable cause, non-disclosure of evidence, abuse of process, and damaging of Raissi’s life, and it seems to me that those people have escaped scot-free.

how best to balance the scrutiny and accountability of the executive by the legislature with decisive government.

Pretty much all information should be available as a matter of course without having to resort to the Freedom of Information Act, unless we are talking about matters of national security.

Opponents of this idea have said that ministers and civil servants will be reluctant to be open. I would say those people, fine, start looking for another job. You have abused our trust too much and for too long. It is our money and we have a right to see what you do with it. If you cannot be professional about it and fulfil your duty, here is your P45.

But we are embarked on this process and the reforms already undertaken by this government are redistributing and diffusing power away from the centralised state. Devolution has transferred power away from Westminster to the devolved administrations in Scotland, Wales and Northern Ireland and London and to local authorities. The Human Rights Act has brought home fundamental rights of the individual against the state, putting them at the heart of our domestic legal culture. The Freedom of Information Act has established transparency as a mechanism for empowering the individual against the state.

And empowered parts of the state (MPs) against other parts (the Government). But surely an MP should be entitled, as an elected representative, to obtain information, and shouldn’t have to resort to the law to do it?

Unfortunately it is still a struggle to get information if the Government minds you having it (example) with it even going to the extent of resorting to centuries old legislation in a highly technical way in order to get around two independent rulings.

And these reforms are working. The vibrant debate, currently energising politics in Scotland and London, for example, would have been inconceivable before these reforms. I believe historians will bracket this government’s reforms with the transformations of the seventeenth and nineteenth centuries as times of profound and invigorating change, when power was redistributed. These last ten years have been years of progress.

True in some respects but we have also been going backwards in other respects.

The work set out in the Governance of Britain programme – the Constitutional Renewal Bill, the Review of Voting Systems, and the Bill of Rights and Responsibilities, will build on these reforms and take them further.

This is contested territory. All of our constitutional institutions lay claim to a fundamental role in protecting and securing the freedoms of the citizens from whom authority and legitimacy derive in a democracy, which is the most authoritative and legitimate form of governance we have yet been able to devise. And all of these institutions lay claim to a role in balancing the exercise of power by the others.

But not a particularly good claim, in the case of Parliament forming a Government, where you get an elective dictatorship. I think we need a huge rethink of the whole thing, but will turkeys vote for Christmas?

Parliamentary sovereignty resides at the heart of our constitution. And Parliament, rightly, claims legitimacy to exercise power on behalf of the people who elect it,

Only 61% of the population turned out at the last election, so presumably he means also that there is no-one exercising power on behalf of the other 39%. Indeed, to be more accurate, in our first past the post system many of the 61% have no representative because they didn’t vote for the candidate who became MP but another candidate.

making laws for the courts to apply, and holding the executive to account, and, indeed, providing authority for the executive to govern.

The executive, the state, claims to deliver effective government for the citizen, without which lies anarchy, a condition where the powerful prevail and the vulnerable succumb.

Yes, it is the executive’s duty to execute the law (note, not invent new laws).

And the courts, interpreting and applying the law of the land, rightly, claim the ability to review actions by the state to ensure that it acts not arbitrarily, abusing power, but according to the rule of law which ensures the equal protection of all.

Each of these claims is contested once they stray beyond agreed limits.

The dangers of government praying executive efficacy in aid of the arbitrary exercise of power are well documented.

Government dominance of the House of Commons has created concerns about what Lord Hailsham famously called an elective dictatorship, with the reduction of the power of the legislature to restrain the executive challenging the legitimacy of the doctrine of parliamentary sovereignty.

Some eminent jurists have even suggested that the doctrine should not apply if government sought to undermine the democratic principles which confer legitimacy on it and that in what Lord Steyn has called ‘such exceptional cases’ ‘the rule of law may trump parliamentary supremacy’.

Lord Steyn said, “For my part the dicta in Jackson [a challenge to the validity of the Hunting Act 2004] are likely to prevail if the government tried to tamper with the fundamental principles of our constitutional democracy, such as 5 year Parliaments, the role of the ordinary courts, the rule of law, and other such fundamentals. In such exceptional cases the rule of law may trump parliamentary supremacy. ”

But, equally the rule of law only applies within accepted political norms. Authoritarian dictatorships might still operate within what, it might be argued, was the rule of law, at least in the formal sense of the phrase. To secure its legitimacy, the law needs to operate according to the underlying values of the society within which it applies. As Lord Bingham has argued ‘democracy lies at the heart of the concept of the rule of law’ – because the citizen should ‘have a say in the laws by which he is bound’.

But the point is that the judiciary won’t feel obliged to uphold a law if it infringes on fundamental principles. See my reference to the Ouster Clause later on in this article.

And the ability of the courts to restrain parliament is itself fettered by the position of the judiciary in our constitutional system. The very independence of the judiciary which secures its integrity also shapes boundaries on its power. In the resonant words of Lord Bingham, ‘The British people have not repelled the extraneous power of the papacy in spiritual matters and the pretensions of royal power in temporal in order to subject themselves to the unchallengeable rulings of unelected judges.’

Quite, that’s why judges can’t strike down Acts of Parliament (but can strike down secondary legislation, as created by the Government without Parliament’s approval, in some circumstances). But let’s be clear, not all rulings are unchallengeable, we can challenge them all the way up the court heirarchy, and also I think we need mechanisms independent from ‘the mob’, mechanisms that can challenge and stand against public opinion, guarding our freedoms against inevitable shortsightedness.

I have been thinking recently about whether democracy or freedom should be our objective, because I do not think they are the same. Indeed in a modern democracy we seem to need undemocratic, or unelected elements, such as the House of Lords, and the judiciary, in order to protect fundamental principles from ourselves.

Such contest is inevitable – and healthy. Healthy constitutions evolve and they evolve most successfully through debate and deliberation. Only in a world, yet to exist, where governments always governed benignly, where parliaments always legislated wisely and freely on behalf of all citizens and the courts always dispensed justice that was universally accepted, would this not be the case.

But this does not mean we can be complacent. Vernon Bogdanor, for example has argued that, in our own times, a broader definition of the rule of law means recognition of those basic human rights which ought to be acknowledged in any liberal society and ‘in this sense of the term, there can of course be a conflict between parliamentary sovereignty and the rule of law’.

That is what senior judges, for example Lords Steyn, Bingham, Hope, and Baroness Hale, argue too.

The likelihood of such conflicts leading to any constitutional crisis in the foreseeable future is remote.

At this point it is well worth recalling the so-called Ouster Clause of the then Asylum and Immigration Bill (see also), which almost did provoke a constitutional crisis, avoided because Michael Wills’ colleagues in Government eventually backed down. So no, the likelihood isn’t remote at all.

Nevertheless we need to assure ourselves constantly that there are effective mechanisms in place for managing the inevitable tensions in our constitutional arrangements.

Our constitution is not validated by how far it measures up to an abstract system of ideals. It’s rather an organism which derives its legitimacy from the way it has evolved over time, tested by event and circumstance, meeting the needs and aspirations of the people it serves, deriving from an organic mix of common law and statute.

Because of its fundamental importance to our society, in approaching constitutional change, caution is a virtue. Historically, constitutional change in this country has been the work of the physician, healing what needed to be healed, rather than the engineer, drawing up blueprints for new models.

Some argue that the process of change, including, for example what they see as increasing limits on the ability of Parliament to scrutinise government and hold it adequately to account, and the entrenchment of fundamental rights which restrain parliamentary sovereignty, means that the time has come to resolve these incipient tensions through fully codifying our constitutional arrangements.

As the Prime Minister and the Lord Chancellor have signalled, it follows from an organic and evolutionary view of constitutional development that we should not rule out progress to a fundamentally different set of constitutional arrangements – embodied in a fully written, codified constitution. But such a fundamental change could – and should – only ever take place on the basis of a settled consensus. And such a consensus will inevitably only emerge over time.

Nor is it the case that such codification would necessarily resolve constitutional tension. A glance at the history of the United States Supreme Court over the last fifty years suggests otherwise. Indeed, it might suggest that such codification could turn difficult and contentious social issues into constitutional issues, constitutionalising them in a way that does not necessarily encourage harmonious resolution, whereas a more fluid, parliamentary, process might do so.

And, as Vernon Bogdanor has pointed out, the existence of a Bill of Rights in the United States did not prevent the continuation of slavery until the Civil War and segregation and discrimination until the latter part of the twentieth century.

More immediately, the Governance of Britain programme is exploring how best to enhance the legitimacy of our constitutional arrangements with the people they serve. This is key to managing tensions between the branches of our constitution. The more representative Parliament is, the greater its power to hold the executive to account. The more the state refrains from the arbitrary exercise of power, the less the courts will feel an obligation to restrain it.

Well, quite! One of the problems here, perhaps the main problem, is that some agents of the state don’t refrain from the arbitrary exercise of power.

Worries about the current condition of the constitution and popular discontents have been well rehearsed. The powers of the state are increasing, it’s argued. Parliament, it’s claimed, is too unrepresentative and unresponsive to those who elect it. The courts are remote and, it is felt by those who read the headlines instead of the facts, the rights they protect are only for others.

Something not helped by certain MPs and Government Ministers. Indeed the Joint Committee of Human Rights criticised the Government for using the Human Rights Act as a “convenient scapegoat for unrelated administrative failings within Government”, and further that the Government was responsible for creating an erroneous impression, and “when those assertions were demonstrated to be unfounded, there was no acknowledgment of the error, or withdrawal of the comment, or any other attempt to inform the public of the mistake”.

You know, it is really quite annoying when Ministers say such things. An old adage springs to mind: “thou hypocrite, first cast out the beam out of thine own eye; and then shalt thou see clearly to cast out the mote out of thy brother’s eye; or, “people in glass houses should not throw stones”.

The Governance of Britain programme sets out a process to address these concerns.

I must confess I’ve never read it. I wonder whether or not it requires Ministers to resign when they deliberately create an erroneous and dangerous impression.

The Constitutional Renewal Bill, to be published shortly, surrenders to Parliament a range of powers currently exercised by the executive, or limits them.

Well, “making it a statutory requirement that treaties are laid in both Houses before ratification”, and “regarding the deployment of troops abroad, the executive should seek the approval of the elected
representatives in the House of Commons”.

The role of the courts in protecting the individual against the misuse of state power is fundamental to our constitutional arrangements. As Anthony Lester has compellingly demonstrated, this does not depend on the introduction of the Human Rights Act alone. For half a century, the British judiciary have applied British common law principles, in ways that have not usurped the proper powers of Parliament, to revive administrative law, extending the protection of natural justice and fairness, principles that define the best about our country, to the individual against state power.

And yet this has not been universally recognised – or appreciated. We need to address this. In practice, these protections are not as accessible as they should be. Too often, the remedies of administrative law against the state remain available only to the powerful who can afford litigation – whether the wealthy individual or the well-resourced non-governmental organisation.

More generally, the Green Paper we will be publishing shortly on a new Bill of Rights and Responsibilities will set out fundamental principles which shape our democracy and should inform the decisions of government, parliament and the courts. Alongside this will be a clear articulation of the responsibilities we owe to each other, that are intertwined with the rights we enjoy. As Lord Hope has said: ‘Respect for the rights of others is the price we must all pay for the rights and freedoms it guarantees.’

Yes, let’s not pervert Thomas Paine.

This needs to be more widely recognised if we are to secure popular acceptance of the importance of these rights in our constitutional arrangements.

This Bill will set out the rights we enjoy and the responsibilities we owe as members of society. We are bringing it forward, not necessarily to add new rights, but above all to ensure that the system works better to protect the individual against the powerful – and that it is recognised as doing so. As citizens become more aware of their rights, so governments become more sensitive to them. In a democracy, education can be as important as litigation in protecting the individual. The greater the cultural change, the less need there is for litigation to secure it. In codifying the rights we enjoy and the responsibilities we owe, this Bill has a crucial role to play. It will express the most fundamental values we share as a nation and help bind us together, enabling the individual to flourish within a common framework of dignity, equality and liberty and mutual respect.

Representative democracy remains the cornerstone of our constitution and no-one is seriously suggesting any alternative. Fortunately. For this government, representative democracy – and therefore Parliament – must remain at the heart of the governance of this country. It’s the best way we have yet found to deliver fair and effective government. It allows for the fairest distribution of power among all citizens and provides for the fair treatment of minorities. It gives government the ability to tackle complex issues continually as they arise and it does give space for effective deliberation for government to refine and improve policy – so decisions aren’t taken in haste and repented at leisure.

But we must recognise that the demands on the system are evolving. People are becoming disengaged from the democratic process – and in different ways. While some see democratic politics as irrelevant to their lives, others wish to become more involved, exercising power between elections as well as at them and they’re frustrated by the lack of opportunity for them to do so.

I forget who first said it, but one of Tony Blair’s achievements was to cut the number of Labour party members by half within ten years. Now, that’s some going.

Hayden Phillips’ review of the funding for political parties found that “Trust in politicians at a national level and trust in political parties are both low, and have been subject to a long-term decline. Polling research indicates that people feel distant from parties, and they feel that parties are only interested in them at election times.”

The Power Inquiry found that people are disengaging from mainstream politics because they “do not feel that the processes of formal democracy offer them enough influence over political decisions – this includes party members who feel they have no say in policy-making and are increasingly disaffected; the main political parties are widely perceived to be too similar and lacking in principle;the electoral system is widely perceived as leading to unequal and wasted votes; political parties and elections require citizens to commit to too broad a range of policies; many people feel they lack information or knowledge about formal politics; and, voting procedures are regarded by some as inconvenient and unattractive.”

The Electoral Commission concluded that “our research found a strong sense of anticlimax with both voters and non-voters recalling being uninspired by the state of politics in 2005, by the four-week campaign and by the choices on offer. On the whole, people recounted little excitement, few genuine incidences of interaction between people and politicians, and were critical of the negative tone of the campaign.”

Furthermore, that “The available evidence also suggests that people were as receptive to the election as they had been in the past – opinion polling showed people as interested in politics in April 2005 as in 1973 – and our annual audits of political engagement have challenged the notion that the UK public is politically apathetic.”

I don’t recall any authoritative source claiming that “democratic politics” seem irrelevant to people.

Does Wills mention these issues of trust and principle? Of course not. But in ignoring these issues he continues to fuel disengagement.

We must be careful how we respond to this challenge. Alternative models of democracy are available. Broadband technology could easily create an electronic infrastructure for a system of plebiscitary democracy.

Passionate advocates of measures of direct democracy, including plebiscites, can sometimes sound as if passing contentious issues directly to the people for decision is an unarguable good. It isn’t. While they can have a place in our constitutional arrangements, they can also be a recipe for passing control of our democracy to the wealthy and powerful. Plebiscites do not offer adequate opportunity for deliberation of complex issues. They do not offer the opportunity to weigh competing policy objectives against each other. They do offer the wealthy and powerful the opportunity to manipulate the outcome. These lessons are all there to be learnt from the authoritarian regimes of twentieth century Europe.

However, we believe there are ways in which our historic system of representative democracy can be augmented without opening the door to plebiscitary democracy. To that end we are introducing new processes of democratic engagement. The British Statement of Values, for example, will emerge from a deliberative process, culminating in a citizens’ summit.

This is an innovative process, which we intend to develop further, in ways we will announce shortly. We believe that new methods of engagement between government and people, including deliberative mechanisms, will support our system of representative democracy by encouraging involvement, reassuring people about the range of ways in which their voice can be heard and, over time, as the experience of deliberative processes ripples out through society, it will prove to be a powerful educative process about the complex demands of democratic decision-taking which in turn, should, should, lead to a greater understanding of the value of parliamentary democracy and a belief in its virtues.

Addressing these issues will clearly be testing for all of us. And I welcome the work that the Constitutional Unit is doing to explore the dimensions of the challenge.

But we believe that any mechanisms to re-engage people with democratic processes and regenerate trust will only succeed if they fulfill five conditions.

* First, they must register with the public. To achieve this, they must be regular and pervasive.
* Second, they must be credible – people must believe they matter. To achieve this, either there must be sustained feedback to participants in deliberative engagement exercises, or they must devolve the decision from government, e.g. to a citizens’ summit.
* Third, they must be open and transparent – participants must be aware in advance of the degree of influence they might have. There must be a shared understanding of when and how these mechanisms will be used. Government must not embark on engagement for the sake of it.
* Fourth, they must be systemic – otherwise people will regard them as cynical window-dressing gimmicks by politicians. They represent a permanent change to the policy development process.
* And finally, they must be consistent with representative democracy – new mechanisms should feed into Parliamentary consideration of issues.

We will soon be publishing a discussion paper setting out in more detail how we believe these objectives can be met.

By now you’ll have noticed that I’ve strayed beyond the remit I was given for this lecture. About the debate on the Bill of Rights and Responsibilities. It wasn’t an accident. It was wilful. Not simply because our plans for this Bill are going to be announced shortly and I can’t pre-empt them here today. But also because the debate that will shortly begin on the Bill of Rights and Responsibilities can only make sense in the context of the wider debate about power in our society. Where it resides. Where it should reside. How it should be distributed. How we should decide how it should be distributed. Who should decide how it should be distributed.

I think it’s clear where the Government believes power should reside, and who should decide how it should be distributed, don’t you?

You all – and the British people – will shortly be given the opportunity to contribute to these decisions. Please seize it.

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