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Negotiated Constitutionalism

Stuart Weir
20 May 2010

In his landmark speech on political reform yesterday deputy prime minister Nick Clegg set out the new coalition government's agenda for restoring civil liberties and rolling back the database state after thirteen years of intrusions under New Labour. Yet at the same time cracks are emerging in the coalition's approach to how rights should be protected with the Lib Dems and Conservatives at odds over the future of the Human Rights Act. In an important new book K. D. Ewing argues that a reformed Parliament elected by proportional representation could strengthen the protection of liberty in Britain from the overbearing state.

K. D. Ewing, Bonfire of the Liberties: New Labour, human rights and the rule of law, Oxford University Press, £19.99 p/back and £50.00 hardback.

K. D. Ewing’s Bonfire of the Liberties is a book that deserves to make a substantial contribution to the debate on how best to protect human rights and civil liberties in the United Kingdom. But the openness of this debate has been muddied by David Cameron’s declared intent to replace the Human Rights Act with his own version of a “British” Bill of Rights and the Labour government’s equivocation over the fate of an Act that is one of its most notable achievements. 

In 1990, Ewing and Conor Gearty wrote Freedom under Thatcher, a clinical study of her governments’ expansion of police powers and contempt for “the traditional freedoms of the person, expression and association”.  But as he writes in Bonfire, the position is now much worse – after the very Act that was supposed to protect our liberties - so much so that he comments, it is “New Labour’s singular achievement to make us pine for the halcyon days of Freedom under Thatcher.”  Ewing and Gearty were then both opponents of the campaign for a Bill of Rights.

Gearty has since changed his view, Ewing remains a militant sceptic. And there’s the rub. He has been a continual critic both of the Human Rights Act and “the futility of human rights”.  In the muddied waters of the debate on the fate of the Act there is therefore a danger that his contribution will be ignored.  Not unnaturally, among those of us who wish to protect or strengthen the Act there are many who deny any criticism of it, or even proposals that could strengthen it, for fear of giving space to Cameron and Labour doubters within which they could weaken or abolish it.  There is one expression of this hostility to Ewing in Geoffrey Robertson’s review of Bonfire in the New Statesman, in which Robertson accuses Ewing of an “Old Labour” solution – “distrust the judges and leave human rights at the mercy of MPs” who are, as he says later, “more interested in flipping their second homes”.

This is a travesty of Ewing’s proposals, to which I shall return (and, incidentally, is a nasty slur on the many MPs, like David Howarth, my own former MP in Cambridge, who have behaved honourably and who do believe in human rights).  But first to the core of Ewing’s erudite and detailed analysis of the state of civil liberties in the United Kingdom and the failure of the rule of law and judicial scrutiny fully to protect. 

In six central chapters he sets out “the continuing corrosion of liberty” under what he describes as “the National Security State”, beginning with the shocking killing of Charles de Menezes under the Met’s “shoot to kill” policy.  Police powers of stop and search and arrest without a warrant.  Kettling, aggression and lack of self-control by police officers.  “A surveillance regime that would have caused Erich Honecker to glow with pride”.  Frequent attempts to extend the maximum period of detention without trial - which also depends on secret evidence.  (As Ewing points out in  chapter 8, Jacqui Smith’s attempt to introduce 42-day detention was stopped dead not in the courts, but by Parliament – i.e., Robertson’s despised MPs.) The determined retention of DNA samples from people who have not been found guilty of any offence. The “rendition of British subjects to unpleasant regimes” where, as we know, they are tortured.

Even as I write I find the list of offensive law and practice almost literally sickening, and there is much more as Ewing reaches down into the effects of this oppressive regime on ordinary people – citizens and non-citizens - as well as searching through the responses of  Parliament, the Joint Committee on Human Rights and the judiciary. 

It is a reflection of the overbearing power of the state and the imbalance of power between the executive, Parliament and the courts that this torrent of abuse can happen. Ewing says that the rule of law is honoured in the breach: giving evidence for his assertions that state power is taken and exercised without legal authority; state authority is exercised arbitrarily, excessively and discriminatorily; and state power is exercised unaccountably “in the sense that rights can be violated without prior judicial authority over a wide range of issues, without due process and a fair trial, and without effective redress in the event of violation”.

He is critical of judges who often make ringing pronouncements that thrill us all, and urges us to “look at what they do” as well as what they say.  Here he argues that the rhetoric conceals the “historically unresponsive nature of British judges to the challenge of liberty” and the continuing influence of a long legacy of deference to the needs of the state.  He cites a variety of restrictions on freedom of the person, speech and assembly that the courts have upheld – including for example upholding the stop and search powers from the Terrorism Act 2000 – and points out that other judicial restraints on the authoritarian state came from Strasbourg court after our courts had failed, as with the retention of DNA samples.  For him the A case, in which the courts rejected the government’s indefinite detention powers, is not the Rubicon it seemed, because the decision was reached with due judicial deference to the government’s judgment that there was a public emergency threatening the life of the nation.  Among subsequent decisions the courts only “shaved rather than removed” the executive power to make control orders.

In The Three Pillars of Liberty, Democratic Audit’s first major study of civil and political rights in the UK, Francesca Klug (the lead author), Keir Starmer and I argued that protection of liberty in Britain by the three traditional pillars – Parliament, the courts and the public – required to be reinforced by specific legal protection, under for example a Bill of Rights.  I still believe that we were right. The Human Rights Act, introduced apologetically by Labour without a Human Rights Commission and a robust programme of human rights education, is nevertheless gaining force, is contributing to human rights education and training in public services, is creating a growing grassroots culture of awareness and is being used by a variety of organisations to uphold the rights and dignity of ordinary people in their dealings with the state.

However the protection of liberty cannot be left to one piece of legislation alone – as we all have seen and as Ewing has so dramatically documented.  The judiciary has been weak and only spasmodically strengthened by the Act. But judges are at least obliged to consider human rights criteria in their judgments, thus airing the principles of liberty.  What is needed now, as Ewing argues, is a stronger and more independent Parliament, with adequate new procedures for protecting human rights.  Here the Take Back Parliament movement is utterly on the ball – proportional representation is important not only to make all our votes count, but also to make the House of Commons both more representative and more powerful in its relationship with the executive.

Ewing argues first that PR is the essential reform; and secondly, for the introduction of the Swedish system of “negotiated constitutionalism”.  It is this element of his book that Robertson side steps in his hostile review, preferring to dwell upon the imperfections of Parliament as presently constituted. In Sweden, the parliament elected by PR has a committee system specially designed to review government proposals for consistency with the constitution in partnership with a judicial council. The parliament has at its disposal procedures to propose amendments to bills that violate the constitution and to delay them for a year or indefinitely. Thus their parliament has effective powers to defend the constitution and civil liberties, restrain government and stop violations before they come into force whereas here the judiciary can only act retrospectively.  It works in Sweden and could work here.

We live here with an uneasy compromise between the powers of the executive and elected governments and the judiciary that seeks to hold a balance between the elected and thus “democratic” arm of government and the unelected judiciary.  This balance is a fraud as our governments are not democratically elected and have overweening power.  How much better it would be if we regarded Parliament and the judiciary as two pillars of liberty, alongside civil society, and developed a system in which they played complementary roles in the protection of the rule of law and liberty rather than opt for one against the other. “Negotiated constitutionalism” and also the weakness of the retrospective nature of the Human Rights Act itself.

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