D-Day and the Constitution! Why Britain needs a written constitution by Lord Scarman
Lord Scarman helped plan the D-Day landings – and in later years was a bold supporter of constitutional reform. We need a little of that spirit again now.
Why are the leading judges of the United Kingdom such wimps? I asked myself this question again after listening to Lord Neuberger, who was president of the Supreme Court for five years until he retired in 2017, speaking last night at The Convention, on dark money, the rule of law and our democracy. He gave an eloquent, chilling description of the tensions and failings of the political system as revealed by the Brexit referendum and its aftermath. But he drew back from the obvious conclusion that it is time to make the constitution our own and write it down, so that it entrenches fundamental checks on power.
At least Neuberger had the courage to take an overview in a public forum. But his reluctance to draw the obvious conclusion is becoming a tradition. Lord Bigham is a notable example. He was Master of the Rolls and Lord Chief Justice and played a leading role in the creation of a separate Supreme Court after 2005. Bingham was rightly concerned at the way some of his colleagues on the bench thought of themselves as above parliament and were careless of the need for democratic legitimacy. But he too drew back in his book on The Rule of Law from drawing the obvious conclusion.
I have reflected on this because I knew and worked with the outstanding exception, Lord Scarman. He was a tough and by no means a liberal judge who became a public figure when he headed the investigation into the 1981 riots. He was the figurehead of Charter 88, the most distinguished public figure to break ranks and join its call for constitutional revolution.
I was the Charter’s first director and drew up a document called ‘We Can Make It Happen in the Next Ten Years’ to turn what was originally an appeal, now backed by thousands, into an organisation with a purposive strategy. We invited Scarman to present it at the launch in Westminster alongside Trevor Smith, then Chair of the Rowntree Reform Trust. He replied immediately to say he could not make it.
We’ve just won a three-year transparency battle against Michael Gove’s department.
Can you help us keep fighting government secrecy?
I was in the office when the phone went and recognised his distinctive voice. “I’ve read the document”, he said in his crisp, judicious manner, “It’s very ambitious”. My heart sunk, thinking an early supporter who had written an article in the Observer for us, was about to back off in typical establishment style.
“I’m coming”. It was the beginning of what he described as an “exhilarating” experience of working together on the cause. In 1992 at my invitation, he set out his authoritative overview in the short Sovereignty Lecture published here in full.
After he died, in 2004, I asked myself why Leslie Scarman was so exceptional. It was not because he was a political radical. But he had the capacity to see clearly that an unacceptable concentration of power was taking place that was a clear danger to minorities.
I suggest my answer today, on the 75th anniversary of the D-Day landings. Because, as a thirty year old (he was born in 1911), Scarman joined the Royal Air Force as a staff officer and helped to plan Operation Overlord, the codename for the Normandy landings. He followed it all the way through and witnessed the unconditional surrender of the German army at Reims.
After 1945, decorated with an OBE, he went into law to become a QC in 1957 and a high court judge in 1961. But for five crucial years the future Lord Scarman had had a completely different experience of the world, outside the parameters of British routines. Not confined by a lifetime of working within them, he had the experience of making something new. He had, so to speak, the overview of Overlord. It did not make him an outsider, far from it, but it ensured he had another perspective and the fearlessness that went with it.
It is in the spirit of the Normandy landings and the war against Nazism that we need to read Lord Scarman’s lecture. It was given 27 years ago. Since then we have had the human rights act that he calls for. Now, as he would have said, it is time for something more ambitious.
This Charter88 Sovereignty lecture was given on 20 July 1992
Gordon Brown, Ferdinand Mount and Shirley Williams, whom I now follow in this, the first series of Sovereignty Lectures sponsored by The Charter 88 Trust, have argued powerfully for constitutional reform. Gordon Brown and Ferdinand Mount have emphasised the need to incorporate into our law the European Convention of Human Rights. All three support a democracy truly accountable to the people and an effectively decentralised structure of government. They would wish to see the principle of subsidiarity accepted as applicable to the regional and local government of the United Kingdom and as setting a limit to the power of central government.
Shirley Williams has given us some wise advice on the importance of ensuring that the institutions of the European Community are accountable to the peoples of the member states. Our membership of the Community, and indeed our membership of the United Nations Organisation, are factors which must surely influence the nature of our future constitution.
Their thinking is entirely consistent with the central concern of Charter 88, stated in these words of the Charter:-
"Our central concern is the law. No country can be considered free in which the government is above the law."
My theme will be that government above and beyond the reach of the law is the menace to be defeated. Charter 88, as we all know, proposes the ultimate safeguard, a written constitution: I quote now what I believe to be a critical sentence:-
"No democracy can be considered safe whose freedoms are not encoded in a basic constitution."
I hold that view strongly. I am not convinced that my three predecessors go so far, though Ferdinand Mount has assuredly felt the temptation. He resists the temptation, but he does not dismiss it. For he asks an anxious question, and I quote him:-
"The supremacy of our elected Parliament is our most precious inheritance, but is that all we are to inherit?"
I would answer him thus: it is all we inherit and it is not enough. We must add to our inheritance.
And clearly Ferdinand Mount feels a tug of regret when, to use his own metaphor, he alights from the constitutional train before it reaches its ultimate destination of a written constitution. He declines to go the whole way because he believes that we can achieve a democracy safe from oppression and injustice by building on the checks and balances of our "unwritten constitution". For reasons I shall give you I do not think this is possible.
The constitution I ask you to envisage for Britain is a code having the force of a basic law and protected by an independent judiciary. "Basic" means that the constitution cannot be amended or repealed (in part or in whole) like the ordinary statute law by a simple majority in Parliament: it can be amended only by a stringent and rigorous procedure not applicable to ordinary legislation. Such a constitution may properly be described as a fundamental or basic law binding on Parliament, the government and the people. There are only two ways of getting rid of it - the special procedure or revolution. Both, let us never forget, are options always open, however unwanted.
I would see this basic constitution as embodying four essential safeguards for the people:-
(1) the protection of the human rights and fundamental freedoms of everyone within the jurisdiction;
(2) the setting of legal limits upon the legislative and executive power of the Crown and Parliament;
(3) the protection of regional and local government by the adoption of the principle of subsidiarity;
(4) the establishment of an independent judiciary having the duty and power of protecting the constitution.
The content of such a constitution is a difficult question. I see it as a foundation for the law, but not the whole structure of the law. The Americans, who have 200 years experience of a written constitution, are careful so to confine their constitution. A good illustration is their civil rights legislation, which is ordinary statute law but founded on the constitution, which of course itself contains a Bill of Rights. The value of building ordinary legislation on the foundation of the constitution is immense: for ordinary legislation can be repealed or amended by ordinary majority voting as and when circumstances so require. One can change the style, the character, even the very shape of the law to meet the changing needs of society so long as the new structures of law and practice continue to rest securely and firmly upon the fundamental principles embodied in the constitution.
Before I develop my argument in favour of an encoded basic constitution, I would warn you of dangerous undertones in two excellent words - "sovereignty" and "subsidiarity". Sovereignty is used by some to indicate "supreme above all, even the law". As such it is something we must reject: the essence of constitutional reform is to ensure that government, as well as the people, is subject to the rule of law. There is however another sense of the word which is useful and acceptable. It is a convenient description of an independent self-governing state. Britain is such a state: and long may it remain so. In this sense sovereignty makes a valuable point: it emphasises that the independence of the state continues notwithstanding the partnership that may develop with other states or with international organisations such as UNO or the European Community.
Subsidiarity is an ugly word - carrying with it, rightly or wrongly, ideas of subordinate, ancillary, auxiliary authority, delegated by a superior authority. Beware of a classical education: it would tell you that subsidiary, subsidiarity, subsidy, subsidence, all carry indications of inferiority or that sinking feeling. These indications are far removed from the principle which most of us believe, or at least hope, the word "subsidiarity" is intended to enshrine. It is not a delegation of power downwards by a superior authority but a sharing of the distribution of the power of government so as to achieve a close relation between those who govern and those who are governed. It is a principle which can increase the people's participation in government. If, therefore, "subsidiarity" is used to describe a constitutionally protected system of local or regional government, let us be clear: we do not intend the decentralised power to be seen as a step down decided upon by a generously minded centre but a step by all of us in the true direction we wish to travel. Our journey must be towards the ultimate goal of a constitutional principle that the exercise of the powers of government must be kept as close as we can keep it to the people.
Local government needs, therefore, as much constitutional protection from the invasion of its sphere by national government as does the national government itself from the encroachments of the institutions of the European Community. Subsidiarity and "citizens' charters" are in some quarters being proposed now as all we need in the way of constitutional reform. This is nonsense. Subsidiarity is a constitutional principle of great importance, but it is limited to the structure of government. "Citizens' charters" as currently proposed are not constitutional principles. They are put forward as ways and means of improving certain important services to the public, e.g. transport, health, water, electricity, gas and the high street. They could be valuable: but they need the protection of the constitution. Unless the citizen has freedom of speech (to include protest and assembly), the right to be informed, and a legal remedy enforceable by him in the courts, he will not secure the services which the charters propose. The citizen must have the information and the opportunity to claim his rights. "Citizens' charters” as now put forward by the government need a written constitution embodying a Bill of Rights if they are to be effective, I pray them in aid, therefore, of my argument.
I will now put as briefly as I can the essence of my argument in favour of a written constitution. First, I consider whether or not the checks and balances of our existing constitution suffice to protect the people, and, if not, whether it can be amended or otherwise strengthened to provide the checks and balances necessary to limit the powers of government. Secondly, I consider what is needed to safeguard our democracy in the circumstances in which British society finds itself at the end of the 20th century: here the question is whether the individual and the minorities within our society have the protection they need in the exercise of their human rights.
First, then, the existing checks and balances of our constitution. Our existing constitution derives from the 1688 settlement between the incoming King and Parliament. The supreme legislative power is vested in this partnership: and in 1688 the Crown, the House of Lords and the House of Commons had all to agree before the law could be added to, changed, amended or repealed by Act of Parliament.
Today our constitution is not "unwritten" but hidden and difficult to find. Much of it is, of course, in writing in the sense that it is published and available to all who wish to read it. The 1688 settlement is incorporated into our statute law: but how many of us read Acts of Parliament? And the settlement is not the whole constitution. It established a parliamentary constitution. Since 1688 Parliament has developed its own processes and procedures. They are based on conventions and practices internally established by Parliament for the conduct of its business. They can, of course, be changed by Parliament. And they are changed frequently without public debate or discussion; for there is no need for legislation to amend them. They are barely known to the public. They cannot be reviewed by the judges. They are political in character and, if we are to believe some distinguished Parliamentarians, (e.g. Stanley Baldwin, quoted by Ferdinand Mount.) they are constantly in a state of flux. They are as different from legal checks and balances as is cheese from chalk. The citizen lacks a constitution which he can read and understand and which enables him, if need be, to claim a right which he can enforce.
The 1688 settlement left the executive power of the state with the Crown, the monarch exercising it through his ministers. Finally, the settlement ensured the independence of the judges but required them to obey the enacted will of Parliament. The judges were thus very much the junior partners in the constitution, and so they remain. Even today they cannot question the constitutionality of any statute - with one exception. The European Communities Act 1972 requires them to follow decisions of the European Court of Justice on questions of law arising under the Treaty of Rome. This obligation could require our judges not to follow a British statute held by that court to be in breach of Community law. Do you remember the case of the Spanish fishermen and the Act of Parliament? The Government saved face by an Order in Council modifying the Act.
But it would be wrong to say that the constitution leaves the courts without any constitutional role. If a question arises as to the meaning of a statute, judicial interpretation is binding. And the judges now have a developing power of judicial review of the acts and decisions of public authorities; but this power does not extend to the review, as distinct from the interpretation, of statute law.
Nevertheless the 1688 settlement, by vesting the supreme legislative power in the Crown in Parliament did introduce a genuine restraint and balance into the exercise of the supreme power of the State. If the Crown wanted legislation to support some course of action which it desired to pursue in the exercise of the executive power of government but could not persuade Parliament to agree, it would not get it. If the Commons proposed legislation unacceptable either to the Crown or the Lords, they could not get it. And the Lords likewise could not get legislation they wanted unless they could persuade the Commons and the Crown to agree to it.
Here was a set of genuine checks and balances in restraint of power. They were political in character, but none the less effective so long as the partnership of the Crown in Parliament was a partnership of equals. But over the years since 1688 first the Crown and later the House of Lords lost the power effectively to stop the House of Commons. The Crown was the first to lose power. It not only lost the reality as distinct from the formality of the right to withhold its assent from legislation proposed by Parliament. It also surrendered to Parliament the control of the executive government. The Crown's Ministers, who exercised and still exercise the executive power of the State, were originally answerable to the Monarch. There was no necessity for them to be members of either House of Parliament, though they frequently were - and especially were they to be found in the Lords. Increasingly, the Crown found it useful, and Parliament exercised pressure to ensure, that the Crown's ministers should be answerable to Parliament. Inexorably the consequence was that the executive as well as the legislative power of the State was surrendered by the Crown to Parliament. In democratising Parliament we reduced the Crown to the status of a constitutional monarchy in which the Crown acts on the advice of ministers answerable to Parliament and assents to legislation proposed by Parliament.
The loss of the Lords' power to stop the Commons came late. In the 20th century two Acts of Parliament were passed which enabled the Commons to legislate notwithstanding the dissent of the Lords. The effect of the Parliament Acts of 1911 and 1949 has so diminished the legislative power of the Lords that we may now say that with one exception (the law setting a time limit for general elections) the Commons are in control of the legislative programme of Parliament.
The loss of this power may be familiar. But the reason for it is still not fully understood. I can put my argument in three short propositions: One) Britain had a genuine system of checks and balances after 1688. Two) the Commons gained power at the expense of the Monarchy and Lords especially after it extended its franchise. The more democratically based the House of Commons became, the more it was able to usurp the power of the others. Now the modern party system has created a single centre of power that controls both the executive and legislature. Three) thus the democratisation of a part has threatened the constitutional settlement as a whole; indeed the concentration of power in the Commons has capsized the old system of checks and balances.
I would invite you at this stage of the argument to consider some far-sighted and revealing comment by William Blackstone in 1765. That was the year in which he published his famous Commentaries on the Laws of England. He recognised and applauded the checks and balances imposed by the constitutional settlement upon the exercise of the supreme power of the State. Having described the partnership in power of the Crown and the Parliament he made the comment:-
"Herein indeed consists the excellence of the English government, that all the parts of it form a mutual check upon each other." [Blackstone: Commentaries on the Laws of England I, 154 (1765 ed.)]
But he also saw the dangers. And I quote his perceptive, even prophetic warning in full:-
"It is highly necessary for preserving the balance of the constitution that the executive power should be a branch, though not the whole, of the legislature. The total union of them, we have seen, [a reference to the Stuart tyranny which preceded the 1688 settlement], would be productive of tyranny: the total disjoint of them, for the present, would in the end produce the same effects, by causing that union against which it seems to provide. The legislature would soon become tyrannical, by making continual encroachments and gradually assuming to itself the rights of the executive power."
The conclusion has to be that the value of the 1688 checks and balances (Blackstone's mutual checks of all the parts, Crown, Lords, Commons, upon each other) has diminished to vanishing point. The substance of the executive and legislative power is with the Commons. The union of the two within the House of Commons has led to the disquieting situation in which we now find ourselves. The House of Commons is supreme: it can force through Parliament and obtain the Crown's assent to legislation which the executive wants: neither the Crown nor the Lords, and certainly not the judges, can stop the executive getting the legislation it wants. And of course, though it be no part of the constitution, the executive is provided under our party political system by the majority political party (or parties, if there be a coalition) which by commanding a majority controls the Commons. The existing constitution retains one periodic check, the necessity of a general election within a period fixed by law. All that remains, therefore, of the 1688 checks and balances is the political process within Parliament itself and the periodic requirement of a general election. There is no effective legal restraint proof against a Commons majority. Supreme power is to be found in the political party which provides that majority.
To sum up, the 1688 checks and balances were never complete: they have now gone: and today the only legal checks left on the party in command of the Commons is the periodic necessity of an election. Our democracy is not safe. The rights of the people lack the protection of the law against oppression, tyranny and injustice if threatened by a prejudiced or frightened political party in control of the Commons. The risk is real: and our constitutional insurance is weak, limited and very fragile.
I turn to my second question which I will now put somewhat more elaborately: can the freedoms and rights of all members of Britain's complex plural society of today be safeguarded without the legal protection of an encoded basic constitution?
Race, religion, sex, economic circumstances, personal location, education, health, age and birth - these are some of the factors that determine the fate of individuals, and cause division and trouble within our society. Many individuals, and many minority groups, however fair our voting system can be made, will lack political influence: and they feel, too often with considerable justification, that political power will, or may be, exercised by a parliamentary majority careless of their rights and lacking sympathy for them in their frustrations, their deprivations, their powerlessness. Even if their plight be less wretched than they think or fear, they are in a weak position: they have no prospect of political power and precious little political influence.
They turn to the courts for protection. There they find some help. But it is not as complete or as effective as it should be. For them the legal protection of a written constitution could be of real value - salvation they might say. And, by the way, let me say that the aesthetically satisfying and beloved design of the House of Commons as a longitudinal chamber divided into two parallel sections, one for government and the other for opposition (the layout of the House of Lords is nearer reality) neither reflects the complex plurality which is British society today, nor encourages the full expression within Parliament of the views of the many minorities within it.
Inevitably many legitimate points of view, many legitimate interests, will lack representation in Parliament. And in some matters, (recent examples are our asylum and immigration laws but there are many others), there is a real risk that human rights and freedoms will be overborne to give effect to policies which fail to protect the human rights and freedoms of all our citizens but which enjoy very great majority support.
A written constitution embodying a Bill of Rights is needed if defenceless and grossly under-represented groups are to have their human rights and their freedoms safeguarded.
What is true of minority groups can be even more oppressive in the case of the individual citizen. The shocking delays and expense imposed upon the citizen, who, having failed to find in our courts any remedy for infringement of a human right, has to make his expensive and exhausting way to Strasbourg, there to seek to persuade the European Commission to admit his petition and, hopefully, to refer his case to the European Court of Human Rights ( where he can appear to argue his case only by courtesy of the Commission), are now well known. It is a monstrous burden. And it could so easily be lifted - by a Bill of Rights enforceable in British courts. A constitution without a Bill of Rights is an appalling anomaly which no civilised state should tolerate.
I have sketched the outline of my argument in favour of a written constitution. In forty minutes that is all one can seek to do. But it would be unforgivable to leave you with that sketch unaccompanied by any proposal for action. The constitutional problem is urgent. Indeed I fear for the future of Britain if we do not tackle now the task of constitutional reform.
We have an excellent starting point for debate. The Institute for Public Policy Research (IPPR) has published "The Constitution of the United Kingdom". It is the work of a distinguished and experienced team. It includes a commentary as well as the draft of a constitution. The first sentence of the Preface states where constitutional reform presently stands: I quote:-
" The Constitution has been drafted in the conviction that an example would advance the public argument more effectively than further general discussion..."
Exactly. Public argument is what is now needed: and the IPPR has put forward a draft which embodies the true principle - that a constitution is foundation law.
But I suspect that the public are not yet convinced of the need to go so far. They are realists, and practical. They want to see something in place which would enable them to appreciate the value to them as individuals of constitutional reform. The key to their support is an enacted Bill of Rights. The idea of a Bill of Rights already has substantial public support. A consequence of enactment would be that it could be used by the citizen to claim his or her right. Politicians, civil servants, even Parliament itself, would take care not to offend: for it would be the law. Legal proceedings would be a last resort: the right to go to law would be the ultimate sanction, and public authority would know this and act to avoid litigation. There is here a role for Charter 88 - to alert public opinion, to get a public debate going, and to make sure that those in authority hear what it is that people want. I believe once they see a Bill of Rights as law people would soon be demanding a constitutional convention to prepare the draft of a written constitution limiting and defining the powers of government.
Much remains for discussion. Civil rights, social and economic rights, the electoral system and the organisation of the public service can be the subject of ordinary laws passed through Parliament by simple majority in the ordinary way provided they are grounded on a constitution and open to challenge if any of the laws go beyond the limits set by the constitution.
I want to see action not words. But action on these questions must be based on educated consent. That is why the Charter 88 Trust will investigate the possibility of establishing 'A Citizen's Enquiry' in which every person and any organisation can participate to argue through what needs to be done.
Let me conclude with one general observation. Mankind has always felt the need of a law restraining the power of government and protecting what we now call our human rights. For centuries and in many different parts of the world religion provided a measure of restraint upon rulers and a measure of protection for the ruled: divine law and its sanctions were well understood and largely respected. The eighteenth century - a period of successful revolution in Europe and North America - saw the dawn of the age of enlightenment and the birth of the "social contract". The social contract caught men's imagination and remains in memory still. It was a revelation of mankind's strong desire that limits be set to the power of government - even when the ultimate authority of the State is vested in the people themselves. And the age of enlightenment has given us the language of human rights law.
Please allow me a postscript - if only to show resilience by a leap backwards. Republican Rome was a democracy of sorts but subject to dictatorial interludes. The Romans recognised a "jus gentium" and a "jus naturale". And they established the office of an elected tribune of the people whose task it was to keep the government in order. He was felt to be necessary notwithstanding the mutual check and balance of two consuls holding office at the same time as joint heads of state.
I am not, therefore, surprised that men still feel the need to keep government in order. The feeling is deep, and as old as man. Let us hope that we in our time can rise to this challenge.
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