The Smoke is Clearing

John Jackson (London, Mishcon de Reya): It would be niggardly and ungenerous to deny the Ministry of Justice any praise for its long awaited Green Paper, Rights and Responsibilities: developing our constitutional framework. The 64 page document is interesting, well written and reflects many hours of careful work. The discussion of rights is far more compelling than that of responsibilities. That latter could have been summed up in one quotation from Thomas Paine: ‘A declaration of Rights is, by reciprocity, a Declaration of Duties, also. Whatever is my right as a man, is also the right of another; and it becomes my duty to guarantee as well as to possess.' That thinking is reflected in the views of my American friends who regard the upholding of the US Constitution as their highest civic duty. To go beyond that and attempt to erect a ‘system' based on the duties of citizens to their state looks unwise.

In one or two places the Green Paper is also politically courageous. The statement  ‘Today, our constitution is a rich fabric of statute, common law and convention and our fundamental rights and freedoms are embedded throughout it. Inevitably these have been shaped by the beliefs and perspectives of the times in which they were created and new demands continually arise to create new challenges. - - - - The Government believes the time is right to explore the case for drawing together and codifying such rights in a new constitutional instrument.'. is an example. Leaving aside the point that the ‘fabric' is so ‘rich' as to be completely indigestible by the ordinary person, most governments, knowing that within eighteen months they would be facing a critical electorate, would have avoided opening up what their party political advisors will have been telling them could become the proverbial can of worms.

It is well known that the Green Paper, and the thinking behind it, was the subject of intense debate in cabinet. The statement quoted above is best regarded as a relic of its original proposals secured by the Ministry of Justice in the course of a protracted rear guard action. They left many corpses behind them. It is interesting to deduce what the battle was about both by identifying other relics and, most significantly, what was left out - the corpses.

Clearly one set of objections raised was ‘Why are we doing this now? It does not interest the public or the press. It makes us look as if we are diverting attention from what we should be concentrating on. Won't any follow-up cost money we should not be seen to be spending? These objections were met by introductory words such as ‘At all times, but especially in turbulent times of rapid and radical change, people need to feel secure.' and chapter headings such as ‘Bills of Rights - seeking stability in times of uncertainty'. The question of cost seems to have been punted into the long grass by limiting the last chapter  Next Steps to four paragraphs covering an unspecific, untimed and uncosted process of consultation ‘upon which we now embark'. It seems most unlikely that such statements reflect what was in mind, and widely welcomed, when The Governance of Britain was published in July 2007.

Another objection seems to have concerned the difficult area of a possible extension of ‘human rights' to cover ‘new' social and economic rights as, for example, they do in South Africa. Politically attractive as a way of wrong footing the Tories and, probably, morally right, this had the disadvantage of opening up the position of the judiciary in an awkward context. Social and economic rights involve the allocation of resources. ‘Such matters must not be justiciable: they are a matter for Parliament, not the judges' the cry goes up. Leaving aside the merit of the point, it (as well as the Tories) reminds everyone that none of our rights, including those protected by our Human Rights Act, are entrenched. All are at the mercy of Parliament.

And that leads to where, I suspect, the shoe really pinched, the constitutional position of Parliament and, closely connected, the construction of Parliament. ‘Parliamentary sovereignty resides at the heart of our constitutional arrangements. And Parliament, rightly, claims legitimacy to exercise power on behalf of the people who elect it - - - .' So say Jack Straw and Michael Wills in their forward to the Green Paper. They may both want to believe it or know they must say it but they know perfectly well that the entrenchment of  rights, in way which makes them inviolable and untouchable by Parliament, judges or government except in a way laid down and agreed to by ‘we the people', is completely incompatible with parliamentary sovereignty as their political colleagues mean it - ‘The Crown in Parliament can do anything except bind its successors.'.

In their foreword also the two Ministers say ‘We believe historians will bracket this Government's reforms with the constitutional transformations of the 17^th and 19^th centuries as times of invigorating change, when power was redistributed.' Historians may say that, but the redistribution of power they comment on may be that of an executive exercising increasing unaccountable power advanced behind the Birnham Wood of parliamentary sovereignty.

‘These last ten years have been years of progress.' say Straw and Wills. Those who came to the Convention on Modern Liberty on 28^th February think that the progress is in the wrong direction, towards an increasingly authoritarian and illiberal state in which a sovereign parliament has had increasing difficulty in restraining the executive.

And what about the construction of that parliament? The Government knows perfectly well that there are a number of unanswered questions around. The composition of the second chamber, the electoral system and the funding of political parties are high on a long list. It is not possible to have a sensible discussion about Parliament and its constitutional role without addressing these. And to discuss the relationship between the citizen and the state without bringing the whole parliamentary question into play is a charade.

I have sympathy for those in the Ministry of Justice who tried, I believe, to get the real issues on the table. They have been blocked, but the rest of us need not be. We can do what they were not allowed to do. As much as by what it does not say as by what it does, the Green Paper leaves all the issues open.  The Government seems undecided on what it would like us to discuss. It says that it wants to begin a process of consultation. It should be much more than that: it should be a process of deliberation. The indecision now presented to us gives ‘we the people' a golden opportunity to take the initiative and say what the deliberation should be about. That is what ‘we' should do.